| LXBN | June 6, 2016
Last
week eleven states have joined a lawsuit against the federal government over
their transgender bathroom rule. In actuality, that’s a big gamble on the part
of the states.
There’s no doubting that these
states’ officials fervor over these laws. When the officials filed suit last
Wednesday against the Departments of Justice and Education, among other federal
agencies and officials, their quotes left no room for interpretation.
“They want to make sure the safety of
their children is protected,” said Texas Atty. Gen. Ken Paxton in
The Los Angeles Times, noting that while he and other officials had not
estimated the cost of pursuing the lawsuit “the cost of defending the
constitution was always worth it,” accusing the President of using executive
fiat to rewrite the law. “We’re willing to fight this all the way to the
Supreme Court.”
Paxton;
joined by officials in
So how odd that soon transgender advocates
may be able to thank these states for their help in securing rights.
“Equal dignity in the eyes of the law”
As I’ve written
before, the year following the Supreme Court’s landmark ruling in Obergefell v. Hodges, has been a tumultuous one for LGBTQ
folks. More anti-LGBTQ laws are being introduced than ever, and the LGBTQ
activist community was worried
that all the accomplishments they’d made would be washed away with the right to marriage—an
important right, for sure, but not
one that protects employment, housing, or anti-discrimination prospects.
But very quickly they saw support from the
federal government: The EEOC
released a 17-page opiniondeclaring that existing civil rights laws ban
sexual-orientation based employment discrimination, The Pentagon announced it would
lift its ban on transgender people serving in the military, and the Obama
administration’s executive order protecting the rights of federal transgender
employees went
into effect. Sure, 2015 marked a “transgender tipping point” and great push for
marriage equality thatseemed
to lead to an unprecedented rash of anti-LGBTQ laws popping up around the
country, but
the Department of Education was stepping
in to help transgender student. Not to mention the public disapproval and monetary
discouragement these laws drew from companies drew from heavy hitters like the NCAA, the NFL, Apple, Disney, and
many more.
But perhaps the most satisfying victory
comes further up. See, although these laws protecting “religious liberty” and
such were passing with a frenzy at the state level, they were
getting their butts roundly kicked at the appellate and federal levels. A problem for LGBTQ advocates has been
that stamping out all these lawsuits is a lot like putting out the fires with a
cup of water. Though the community was notoriously well-organized and
well-funded in the fight for same-sex marriage, it’s hard to do that when
there’s local, costly fights happening around the country.
“History doesn’t repeat itself, but it
rhymes”
Of course, that was sort of the case back
in 2014. The Supreme Court was side-stepping the issue of marriage equality,
denying certioraris left and right until finally they
saw a circuit split from the Sixth Circuit courtupholding the ban on same-sex marriage.
And as Steve
Delchin of
the Sixth
Circuit Appellate Blog noted at the time, a classic ironic twist was
born.
“A lot of
people were surprised the Supreme Court stayed its hand last month but I didn’t
find it surprising. I think the Court was waiting to see if a circuit split
would emerge–and now we have it,” said Delchin in an LXBN TV interview. “Let me
leave you with the ultimate irony: consider that Judge Sutton’s opinion is the
ultimate defense on judicial restraint. But his opinion likely might be the
catalyst that not only spurs the Supreme Court to accepting gay marriage, but
also a judicially active opinion that creates new constitutional rights.”
Like Judge Sutton, Paxton et. al have
maintained that they are deny transgender rights on the grounds that the people
have a right to decide. If the communities in Fort Worth, North Carolina, and
other places don’t have any transgender people (which is kind of like saying
“we don’t have slugs” after putting out slug-killer; you probably won’t know
because the environment is too hostile) they should let the community decide
how to proceed. Perhaps these 11 states’ officials were gambling on a
Republican president being sworn in and automatically undoing
the Obama administration’s many executive actions protecting the LGBTQ
community, and bringing
a conservative judge to the ninth Supreme Court seat to help swat down the appeals of
cases like these.
But like Judge
Sutton, they may have just created one singular case, one mammoth boogeyman for
trans advocates and communities to rally against. And so far it doesn’t seem
like the LGBTQ advocates need to count on a liberal president. Before it was going
to take a lot of time and a lot of money to reach this point. Now it may just be a matter of
time.
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