Transgender Rights & the 14th Amendment

If you haven’t heard about Virginia teen Gavin Grimm, it’s likely that you will soon. His struggle for rights will be before the Supreme Court in the next few years.

Actually, Grimm’s case was supposed to go before the Court this spring, until the Trump administration changed its interpretation of the Title IX law, which governs how transgender students are treated in public schools, and even if their gender identity is recognized at all.

Grimm, a transgender student at a Virginia high school, was required to use either the bathrooms that corresponded to his biological sex or a private bathroom. He was not permitted to use the boys’ bathrooms, the gender he identifies with.

Grimm’s case will help us gauge the current Court’s interpretation of the 14th Amendment’s equal protection clause. We already know from Obergefell v. Hodges that a majority of the Court (the four traditionally progressive members along with Justice Kennedy) believes that discrimination based on sexual orientation can be classified as sex discrimination, and is thus prohibited under equal protection. But will the Court view “sex” and “gender identity” as separate?

If gender identity is considered inessential to sex, and the term “sex” should be understood in an entirely biological context, it’s easy to make the argument that transgender people are not being treated any differently than other members of their biological sex. Under this logic, there is no sex discrimination present.

But this seems to be a view of sex and gender identity that is increasingly outdated, and adopting it would place a substantial burden on transgender people. Heartened by the success of the gay rights movement, more and more people who don’t identify with their biological gender are embracing their true identities. Transgender people currently represent 0.6 percent of the U.S. population, and that figure is likely to increase substantially as being transgender (hopefully) continues to gain popular acceptance. If transgender people, particularly transgender young people, do not have their identities validated, or at least tolerated, by the public school systems they spend their developmental years interacting with, they are likely to face serious discrimination throughout their lives.

Districts have argued that providing private bathrooms alleviates any form of discrimination that would be imposed by requiring transgender students to use the bathroom of their biological sex. But a student who is required to use a private bathroom is likely to be ostracized by such a requirement, and it implies that there is something strange or wrong about the transgender student.

Obergefell v. Hodges was a landmark decision that affirmed that the Court views the equal protection clause of the 14th Amendment as a part of the Constitution that is “living”, meant to evolve with the American people. Our nation has made incomplete, but substantial progress towards a society that affords gay and lesbian citizens equal rights and status. And, while the results of November’s election might serve as a refutation of such a belief, I do believe the United States is moving towards transgender recognition and acceptance in a similar way. The Supreme Court should recognize this evolution and rule that discrimination based on gender identity is a form of sex discrimination that is incompatible with equal protection.

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2 Responses to Transgender Rights & the 14th Amendment

  1. azwoodland says:

    Michael,

    Great post, as always! I think you bring up a compelling point concerning the bathroom rights of people who are transgender. I know the topic of unisex bathrooms often is touted as a solution to the problem; those who are transgender can just use an individual “Family Restroom.” However, as you state, this is ostracizing to the person, forcing them to face the fact that they are not accepted by society. I believe that this is a non-issue that has escalated to something more dramatic than it should be – why can’t we just let the people use the bathrooms they want to?

    In the last sentence of your post, you charge the Supreme Court with recognizing that the United States is becoming more accepting of the entire LGBTQ community and rule accordingly. However, I am less optimistic that this will happen. At least, not in the next four years. Judge – well, I guess now Justice Gorsuch, historically has ruled against furthering protections for LGBTQ people. Gorsuch adopts the strict textualist approach, with little wiggle room. For example, he wrote an op-ed piece where he said that American liberals could only “win a victory on gay marriage when preaching to the choir before like-minded judges in Massachusetts” (Gorsuch, 2005). Gorsuch is against the using of courtrooms as the tools for change, instead of relying on “elected leaders and the ballot box as the primary means of effecting a social agenda” (Gorsuch, 2005). With Gorsuch now confirmed, I am not optimistic for significant, groundbreaking expansions of LGBTQ rights. I guess we’ll just have to see what happens. Oh, and be grateful that we have precedent like Obergefell.

    Gorsuch, Neil. “Liberals’n’lawsuits”. National Review. N.p., 2017. Web. 11 Apr. 2017. http://www.nationalreview.com/article/213590/liberalsnlawsuits-joseph-6

  2. thomasmatiski says:

    There are no easy answers to this problem. Do we protect the minorities, in ways that they so rightly deserve, but with the conflicting issues of the majority being compromised and opened to abuse? It is truly the right thing to desire to give the right for these people to use the restrooms that matches their real gender, not physical. However, steps must be taken in order to carefully limit the abuse of allowing physical males into women’s restrooms. A system of responsible, yet reasonable restrictions is needed to separate those who truly wish to be the opposite gender and those who wish to abuse this freedom for sexual perversions. It is truly a complex issue. I cannot justify allowing anyone to use the women’s restroom just because they say they identify as a woman, and in rare cases the vice versa. It is an unfortunate fact that women are far more at risk for sexual assault than men. For these reasons, there must be some sort of system that must be employed for transgender people to prevent said abuse, until we as a society have evolved beyond such abuse.

    This is a very common defense, as seen in Glenn v Brumby, where the defense argued against allowing a transgender woman from using female restrooms and then fired her in protection against lawsuits from other women, despite the fact that all the restrooms were single use unisex bathrooms. This case is an example of blatant discrimination, but this defense remains: protection for women from sexual assault in restrooms, especially female children, is a compelling one.

    The compromise offered currently, with a third bathroom, does offer the problem of social isolation and stigmatization, and is not a long term solution. Neither is letting anyone go into whatever bathroom/restroom they want. But where to draw the line, is difficult and not easy to determine either. The issues of personal privacy comes up. How do you really determine who is transgender, and who is not? I don’t have an answer, and neither does anyone else have in this stage. Social gender norms are too entrenched at this point in time, and it will take serious work to overcome these barriers to true gender equality and freedom to identify yourself as the gender that you truly are.

    http://www.lambdalegal.org/in-court/cases/glenn-v-brumby-et-al

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