Is This 11 State Suit Against Transgender Bathroom Access the New Obergefell?

By Zosha Millman | 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 Alabama, Georgia, Louisiana, Oklahoma, Tennessee, Utah, West Virginia, Wisconsin, Maine, and Arizona; initially filed the suit on behalf of folks in school districts in Fort Worth and along the Oklahoma border who opposed the directive. In their view, the district contains no transgender students and they shouldn’t be beholden to a federal directive for transgender bathroom access. It’s a sentiment found across the country; most notable as of late in North Carolina, where the Justice Department and the state are both suing each other over transgender access to public bathrooms.

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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