Justice is a Journey: Progress, Backlash, and Illumination on the Road to Transgender Equality
For good and for ill, transgender peoples’ lives are in the news these days. Headlines proclaiming victories and lamenting losses in several high profile legal matters reflect the ascendant but unsettled state of transgender rights across the country.
A Virginia appeals court reverses the decision of a federal district court resulting in an order that a transgender boy be allowed to use the boys’ restroom when classes start up this Fall. The Supreme Court shortly after steps in to say, “no,” the school could decide to exclude him pending a full blown trial.
School districts throughout the country begin doing the work of ensuring transgender students – like all students – are treated with respect. A federal trial court in Texas rules that the U.S. Department of Education (DOE) did not follow proper procedures in adopting guidance that transgender students must be given access to restrooms according to their gender identity, and purports to prevent DOE from protecting transgender students anywhere across the country in cases involving bathroom access.
Most recently, a federal district judge in North Carolina rules that the North Carolina law that requires bathroom access consistent only with so-called “biological sex” as stated on a person’s birth certificate violates Title IX.
All of these cases – and more - remain actively in litigation; none are fully resolved.
Why is there suddenly – or so it seems – so much litigation and policy work focused on transgender people and particularly transgender young people? And what does it mean for us here in New England?
Backlash in response to progress should not surprise us. We have changed hearts and minds along the way, to be sure; we must continue the education, communication, and openness that helps people rise above reflexive fear.
First, the answer to why – we have made tremendous progress in the last several years. The number of states with comprehensive legal protections for transgender people has risen to 18 as, just months ago Massachusetts passed a transgender public accommodations law resulting in both explicit statutory protections and helpful and important guidance from the Attorney General’s office and the MA Commission Against Discrimination.
During the time of passage of these laws, GLAD won a huge and important victory – the first of its kind – in which a court conclusively held that transgender students must be given access to restrooms based on their gender identity. In the same time period, insurance exclusions throughout the U.S. have been struck as a result of key insurance commission decisions, Affordable Care Act regulations, and advocacy by transgender individuals with employers, doctors, and insurers. And the federal government has been actively working to clarify that transgender people are protected by existing law, reflecting the consensus position reached by federal courts around the country. Transgender voices and lives have become audible and visible in the social and cultural debate.
Backlash in response to this progress should surprise no one. We have changed hearts and minds along the way, to be sure. Local polls just prior to Massachusetts becoming the most recent state to add public accommodations protections showed majority support for the non-discrimination law. But that level of support did not just happen on its own. It was and is the result of sustained, focused efforts to spotlight the lives of transgender individuals, family members and our loved ones. We know that progress and support comes only when people understand, in a real, deep, and individualized way who we are. That we are parents, children, friends, neighbors, members of faith congregations, co-workers, and colleagues. That we have the same diverse range of aspirations, hopes, and dreams for ourselves and our children that others do.
But given the small size of our community and the years of silence and invisibility surrounding our lives, it should be unsurprising that along with progress and protections comes backlash. Because it is also true that in this large and diverse country, there are many places where people either don’t know transgender people or simply don’t know that that they do. And because of that, many people view us with suspicion or worse.
We know too that the issues that get raised in some of the areas in which we need and seek protections, particularly in spaces viewed as uniquely private, where people often feel vulnerable -- are ones that trigger people’s anxiety or fears. The reality is that sexism is real – alive and well. Women are vulnerable and face harassment and violence on a regular basis. The threats to women’s safety do NOT come from transgender women (who themselves face high degrees of harassment and violence). We know that. But the fact that women are indisputably at risk combined with the fact that not enough is being done to respond to this risk, leaves a void of anxiety and fear that can be reflexively or unthinkingly misdirected, including towards transgender people.
But we also know what helps people to rise above that reflexive fear: education, communication, and being open with one another about who we are.
We’ve learned quite a bit about how best to do that over the years. GLAD has been part of several recent campaigns to bring more visibility to people’s lives. We did early work telling the stories of transgender people, showing that transgender people are part of communities, families and workplaces – for example, our video, Everybody Matters, and our New Hampshire storybook, We Are New Hampshire. From there, we collaborated with other movement groups learning how best to communicate about transgender lives. Millions of Americans saw the fruit of that research: a television ad that ran during the Republican National Convention this summer humanizing the experience of a transgender woman being turned away from being able to use a public restroom:
So, there is a clear and productive path forward to do this educational work in an effective way.
But the question that remains is what all these legal developments and ongoing educational work mean for transgender people in the meantime? On the most concrete level: none of the recent cases limit or prevent any private individual from bringing a federal education claim (Title IX) for discrimination or exclusions faced in school. Although the Texas court’s order does purport to limit DOE’s ability to pursue new claims based on its guidance relating to restroom access, no part of the order restricts anyone affected by school discrimination from bringing their own claim. Nor does that one court decision restrict any other court from interpreting Title IX consistent with the DOE’s guidance.
For school districts that are working to implement fair and common sense policies, nothing has changed: you are still not only allowed but required to treat transgender students equitably. And for transgender students and your parents: you have a right to be treated with dignity and respect. If you encounter anything different, I encourage you to reach out to GLAD.
It may take time for these questions to be fully resolved nationwide – work for justice always does. But GLAD and our allies will continue working in court, through our state and federal legislatures, and through public education to ensure that the journey to justice for transgender people continues.
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