States’ Rights, Civil Rights, and the Rights of Transgender Americans

While it is difficult to get accurate statistics regarding transgender individuals – including the percentage of Americans who identify as such – it is well-documented that transgender people face higher than average rates of poverty, discrimination, and suicide. The 2016 U.S. Transgender Survey, the largest survey of its kind, reported that 54% of openly transgender students were verbally harassed at school, 29% of those surveyed were living in poverty, and 40% of respondents had attempted suicide (compared to a national rate of 4.6% in the U.S.).

Recently, the national discussion over transgender rights has centered on bathrooms. Per a 2017 U.S. poll by a nonpartisan research group, a majority of Americans oppose laws prohibiting transgender people from using the bathroom that corresponds with their gender identity. Unfortunately, despite these poll numbers, the controversies surrounding bathroom access continue unabated.

From Target’s inclusive bathroom policy to North Carolina’s “bathroom bill,” debate is widespread, intense, and often extremely personal. Advocates of these discriminatory laws often claim barring transgender people from the bathroom that corresponds with their gender protects cisgender people from sexual predators who would pretend to be transgender in order to gain access to potential victims; however, this perpetuates the myth of LGBT people as sexual predators and ignores the fact that 64% of transgender people will be victims of sexual assault. Furthermore, existing laws already prohibit bathroom voyeurism or assault without discrimination.

Some consider an increase in ‘gender-neutral’ bathrooms to be an acceptable compromise, but this approach still segregates transgender people, and these separate facilities are often not as conveniently located, making it particularly difficult for students to make it to the bathroom between classes. Transgender bathroom segregation echoes the racial segregation of the Jim Crow era – both violated federal civil rights and both claimed to address public safety concerns.

In a recent interview on CBS This Morning, Laverne Cox, a transgender actress best known for her role on “Orange is the New Black,” put the scope and effect of discriminatory bathroom policies into perspective: “[T]hese bills are not about bathrooms. They’re about whether trans people have the right to exist in public space. If we can’t access public bathrooms, we can’t go to school, we can’t work, we can’t go to health care facilities. And so, public accommodations are always key to civil rights.”

Cox is correct in her assessment – access to public accommodations has frequently been categorized as a key civil right. The Civil Rights Act of 1964 included a provision prohibiting discrimination in public accommodations, and the 1964 Heart of Atlanta Motel case held that even private businesses were held to this standard. The Americans with Disabilities Act also prohibits this type of discrimination in both public and private facilities.

The latest iteration of the controversy has circled around high school student Gavin Grimm’s legal battle against his school concerning his right to use the bathroom of his choice. Last week, less than a month before it was set to be argued, the Supreme Court rejected the case and sent it back to the Fourth Circuit: the lower court, in its decision, had relied in part on an Obama-era interpretation of Title IX that is not supported by the current administration.

The Trump administration outlined its position in late February of 2017 in a letter revoking Obama Administration guidance regarding transgender rights in public schools, citing a desire to “further and more completely consider the legal issues involved.” The letter avoided speaking out directly against the rights of transgender students by deferring to “due regard for the primary role of the States and local school districts in establishing educational policy.”

Education Secretary Betsy DeVos, who has spoken about prioritizing protection for “all students, including LGBTQ students,” also considers the issue one “best solved at personal and local level.” This posturing allows an appeal to both sides of the debate: the administration can appeal to those opposed to transgender rights by reversing federal protections and appease those who support transgender rights by claiming its position is based on deferral to the states rather than a deliberate denial of civil rights.

In principle, states’ rights were designed to protect individual liberty from federal encroachment, but in practice, the federal government has typically been a much stronger protector of civil rights and liberties than the states. The use of “states’ rights” to soften the appearance of civil rights violations is nothing new; one of its more popular iterations claims that states’ rightsnot slavery – motivated Southern states in the Civil War. Similarly, after the passage of the 1964 Civil Rights Act, politicians like Barry Goldwater claimed the South’s shift from Democratic to Republican was not because Southerners opposed civil rights, but because Southerners prioritized states’ rights.

The same types of arguments have been utilized by the current administration. Invoking states’ rights allows Betsy DeVos to sympathetically meet with the families of transgender students and allows Trump to claim he is “respectful and supportive of LGBTQ rights,” even while their actions actively make the lives of LGBT students more difficult and dangerous.

By sending Gavin Grimm’s case back to the Fourth Circuit, the Supreme Court prolonged the struggles of the estimated 150,000 transgender students currently in American schools. The Court also delayed ruling on the level of federal protection afforded to transgender Americans. This inaction takes an already vulnerable group of citizens and leaves them in a state of limbo, unsure of whether their rights are valid and protected.

In encroaching upon the civil rights of transgender individuals, America is falling back into some of the most discriminatory patterns of its history. Such policies have no place in a country founded on the ideals of equality and individual liberty. As long as we have to fight to defend the rights of our fellow citizens, we cannot be the free and diverse nation we claim to be.

Share
Written by

Megan is a 3L at HLS. She is originally from Minnesota and graduated from Louisiana State University with degrees in Psychology and Political Science. She is passionate about women's rights and social equality.

No comments

LEAVE A COMMENT