How a Conservative Legal Perspective Just Saved LGBT Rights

It is already a truism that the Supreme Court’s June 15 six–three decision, holding that discrimination against LGBT people constitutes sex discrimination, came as a shock to queer and trans legal advocates. With the replacement by Brett Kavanaugh of Anthony Kennedy, who tended to favor gay rights, and with John Roberts joining the dissenters in the 2015 same-sex marriage case Obergefell v. Hodges, it looked to be five solid votes against the gay and transgender employees in the three cases consolidated as Bostock v. Clayton County. Plans for protests were already in the works if the Court, as expected, greenlighted the firing of Gerald Bostock and Donald Zarda, two gay men, and of Aimee Stephens, a transgender woman.

Likewise, conservatives were not worried, since it seemed unimaginable that this Court would find room for queer and trans people under the carapace of a law passed fifty-six years ago ostensibly to protect women in the workforce. Such a major policy shift, they thought, would be legislating from the bench. (In the last few years, sex discrimination caselaw at the appellate level has been trending toward transgender plaintiffs; it remained more divided on the question of sexual orientation. The transition to a Trump-dominated judiciary is not yet complete in the circuit courts.) Last fall, two attorneys from the conservative First Liberty Institute confidently predicted victory for the employers: “As the maxim goes, Congress does not hide elephants in mouseholes. All things considered, it seems likely that this Supreme Court will continue to leave such large policy shifts to the discretion of Congress.”

That prediction failed, dramatically. For Neil Gorsuch, who authored the majority opinion, and the five other justices who sided with the gay and transgender parties, the logic “follows ineluctably from the statutory text.” One cannot fire a gay, lesbian, bisexual, or transgender person without taking sex into consideration.

Read the rest at The Boston Review

 

What’s the wedge issue?

Last month I was talking with the amazing Amaya Perez-Brumer and other graduate students at Columbia’s Mailman School of Public Health. Someone asked me, “If same-sex marriage is the wedge issue for the gay rights movement, what’s the most divisive issue in transgender politics?”  A good question, and certainly there are real divisions about what should be prioritized, just as there has been in the LGB rights movement.

There are a number of  priorities, but what should top the list? If we want to make trans lives better, where should our resources be directed? In fact, the National Gay and Lesbian Task Force and the National Center for Transgender Equality  asked that question on page 178 of their enormous 2011 survey project, “Injustice at Every Turn.” The policy areas most frequently by the survey’s 6450 respondents were:

Protecting transgender/gender non-conforming people from discrimination in hiring and at work: 70%

Getting transgender-related health care covered by insurance: 64%

Passing laws that address hate crimes against transgender/gender non-conforming people: 47%

Access to transgender-sensitive health care: 43%

Better policies on gender and identity documents and other records: 40%

Protecting transgender/gender non-conforming people from discrimination in housing: 26%

The right to equal recognition of marriages involving transgender partners: 25%

Passing anti-bullying laws that make schools safer: 21%

Transgender/gender non-conforming prisoners’ rights: 15%

The right of transgender/gender non-conforming people to parent, including adoption: 14%

HIV prevention, education and treatment:11%

Allowing transgender/gender non-conforming people to serve in the military: 7%

Immigration policy reform (such as asylum or partner recognition): 5%

This list gives some sense of the popularity of particular policy areas.  But the numbers fail to reveal a wedge issue, just significantly less interest in immigration, military service, parenting rights, incarceration. bullying. Even these least popular issues represent very different political positions–for example, prisoners’ rights versus the right to serve in the military.

I’m still thinking this through, but my first stab at an answer to this question was that there really isn’t a wedge issue. It’s not trans employment discrimination versus the plight of trans HIV positive people, prisoners, parents or immigrants.   The wedge is transgender itself. In that sense, it’s sort of an inverse wedge, if there can be such a thing.  So really not a wedge, but a wrong cramming together of people whose only commonality is that one way or another their gender didn’t turn out as expected, based on the sex they were assigned at birth. That “trans” or “transgender” purports to describe people who are so very  differently situated in relation to their vulnerability to violence, to incarceration, to illness, to homelessness seems like one of the more miraculous feats of identity politics.

More on this to come as I work these ideas out in the chapter I’m writing on incarceration, trans economicus and the freeze frame policy in the book.