The Supreme Court & Transgender Rights

The New Focus on Transgender Rights

In the aftermath of President Trump’s military ban, how do US courts view transgender rights? Quibbl breaks down the arguments and asks what’s next.

By Lillian Aff

Will upcoming Supreme Court rulings extend civil rights to transgender individuals?

Transgender rights-related cases have only very recently begun to be addressed in the Supreme Court. The high court has a long history, however of ruling on sex discrimination cases. In Price Waterhouse v Hopkins (1989), the court determined that employment discrimination based on sex stereotypes is unlawful discrimination under Title VII of the Civil Rights Act. Other cases similarly invoked Title VII to rule against discrimination on the basis of sex, while the court has also frequently upheld Title IX of the major civil rights legislation, which blocks sex discrimination in federally-funded schools. By comparison, transgender discrimination cases are only beginning to make their way through courts at different levels, and their outcomes will have significant implications for the future of transgender rights, especially in light of President Trump’s recent ban on transgender military service.

The State of Trans Rights

  • In 2015, the ACLU filed a lawsuit on behalf of Virginia high school student Gavin Grimm against the Gloucester County School Board for denying the transgender student access to the restroom associated with his male gender identity.
  • Partially in reaction to Grimm’s case, numerous states passed or attempted to pass laws requiring that students use the bathroom of the sex listed on their birth certificate; these states have generally cited the protection of privacy rights as central to their rationale. The most publicized of these attempts, North Carolina’s “bathroom bill,” ultimately failed to become law.

Will a lower court rule on whether Gavin Grimm still has enough of an affiliation to his high school to pursue his case? Quibbl here.

Military Ban Highlights The Importance of Trans Rights Cases

  • President Trump recently repealed the Obama Administration’s directive allowing transgender military service. The initial announcement came via tweet, and he provided the Pentagon with official policy directives a month later. The ACLU has since filed a lawsuit against President Trump on behalf of several transgender military service members.
  • The President’s new policy is currently under review by Defense Secretary Mattis, who has announced his intention to create a panel to decide how best to implement the President’s order. In the meantime, transgender service members already enlisted will continue to serve.
  • Most are looking to the Supreme Court for the final word. After President Trump’s election, the top court abruptly dropped its plan to hear Gavin Grimm’s case, originally slated for last October. The fate of the case remains uncertain and may lie with lower court rulings; in fact, the Supreme Court might first determine the constitutionality of the trans military ban.

When will Secretary Mattis convene a panel to determine how to implement President Trump’s directive to ban transgender individuals from the military? Quibbl here.

  • While the policy is in limbo, Democrats may respond politically to the ban. Some congressional Democrats are formulating an amendment to the upcoming annual National Defense Authorization Act that reverses Trump’s policy.

Will Senate Democrats attach an amendment to the NDAA that reverses President Trump’s transgender military ban? Quibbl here.

Varying Opinions on Transgender Rights

  • Arguments against trans individuals using the bathrooms of their choosing cite privacy rights: “The first duty of school districts is to protect the bodily privacy rights of all of the students who attend their schools and to respect the rights of parents who understandably don’t want their children exposed in intimate changing areas like locker rooms and showers,”- Kerri Kupec, lawyer with Alliance Defending Freedom
  • In early 2016, the Obama administration, while acknowledging the lack of legal precedence in transgender cases, gave its opinion that North Carolina’s law requiring students to use the the bathroom corresponding to the sex on their birth certificates was discriminatory under Title IX. Obama attorney general Loretta Lynch addressed transgender students in saying, “We see you, we stand with you, and we will do everything we can to protect you going forward.”
  • President Obama’s Department of Education joined with the DOJ in asserting that schools risk losing federal money in the event of discrimination against trans students. The Trump administration revoked that warning, stating that it was formulated without “due regard for the primary role of the states and local school districts in establishing educational policy.”

What do you think? Quibbl about LGBT issues and all things politics here.

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