Everything’s At Stake For Trans People At The Supreme Court
Health care, employment, education — a radical Supreme Court nominee could undo decades of progress in the fight for transgender equality. Here’s everything we stand to lose — and what you can do to stop it.
It’s impossible to overstate the importance of the Supreme Court when it comes to transgender equality. After decades of advocacy and legal work, many of the issues that affect transgender people every day — workplace discrimination, exclusionary school policies, and barriers to health care — are working their way through federal courts at this very moment. Any one of these issues could arrive at the steps of the Supreme Court as soon as this year.
What’s more, the Supreme Court vacancy gives President Trump the chance the decisively tip the balance of the Court against equality for generations to come. Here is everything we stand to lose in this fight:
Any person who has transitioned on the job can tell you it is hardly any fun or easy. While more and more workplaces affirm and respect the dignity of transgender employees, workplace discrimination is still widespread — from the application process to the board room.
Such discrimination — such as firing or not hiring someone because they are transgender — is explicitly prohibited in 19 states and over 300 municipalities across the country. In 2012, the bipartisan Equal Employment Opportunity Commission confirmed the rights of transgender employees — like all employees experiencing sex discrimination — are protected by Title VII of the 1964 Civil Rights Act.
While a widespread consensus has formed in federal courts on this issue, the Supreme Court may ultimately decide whether firing you for being trans is legal in most of the country.
One case that could bring this issue before the court is that of Aimee Stephens, a Michigan funeral home employee who was fired shortly after coming out to her employer as transgender. The employer, Harris Funeral Homes, claims it is within their religious rights to fire a transgender employee.
A federal appeals court said Stephens’s firing was illegal, but anti-LGBT groups are asking the Supreme Court to go against decades of federal law and give employers a license to discriminate. Whether in this case or one like it, the Supreme Court is likely to decide in the next couple of years whether it’s legal in most of the country to fire you simply because you’re transgender.
While many transgender people have faced widespread discrimination in healthcare settings, vital policy changes at the state and federal level have drastically improved the healthcare landscape compared to a decade ago. Chief among these is the Affordable Care Act, which was the first law to explicitly prohibit discrimination based on a patient’s sex.
Courts have said that that includes discrimination against trans patients. In 2016, the Department of Health & Human Services issued a clarifying rule to doctors and insurers that the ACA cannot discriminate against transgender people.
While failing to repeal the ACA in Congress, Trump has continually sought to sabotage the law. In February, the administration unveiled a new proposal that would encourage doctors to justify discrimination using religion, and later this summer we are expecting them to walk back the 2016 ruleprotecting transgender patients.
In June, the administration asked a court to strike down provisions of the law preventing insurance companies from denying coverage to patients with pre-existing conditions. As too many people remember, simply being transgender was often considered a “pre-existing condition” before the ACA. This is a stunning attack on the most popular part of the ACA, and one that has secured access to life-saving health care for untold numbers of transgender people.
While the Supreme Court has repeatedly upheld the ACA, Trump has promised that nominees on his shortlist would overturn the law. With hostility to the ACA as a “litmus test” for the shortlist, health care protections for millions of Americans are at stake.
Transgender students — like all students — need the support of their teachers and their schools if they are expected to learn and thrive. Unfortunately, only half of the transgender students in this country attend a school with inclusive policies and even more face daily harassment from their peers and even from teachers. It’s no wonder transgender students overall are more likely to miss school, have lower grades, and even be expelled.
Many families have taken to the courts to challenge school policies that exclude transgender students, and it’s a near certainty one will end up before the Supreme Court. The case of Gavin Grimm — a Virginia teen forced to use a segregated bathroom instead of the boy’s room — reached the Supreme Court last year before being sent back to the lower courts.
Now, another federal judge has found in Gavin’s favor. That ruling came the same week a federal appeals court in Pennsylvania upheld a school’s policy preserving the right of students to use facilities consistent with their gender identity, noting that to do otherwise “would very publicly brand all transgender students with a scarlet ‘T’.”
Indeed, transgender students have won nine federal court rulingsin just the last two years alone. But as the Trump administration wages a war on the rights of transgender students, they must be able to continue looking to the courts to protect them.
Throughout his first year, Trump nominated federal judges with extreme positions that demonize transgender children, with one nominee even claiming they were evidence of “Satan’s plan.” A case like Gavin Grimm’s is likely to end up back before the Supreme Court soon, and could decide whether federal law still protects trans students or whether schools will be permitted to target and exclude them.
Few actions this administration has taken against transgender people have been as public as its proposed ban of transgender troops in the military. With little input from military officials or medical experts, the ban has grown from the President’s surprise proclamation by tweet into a dangerous and hostile policy built on stereotypes and misinformation.
Currently, the ban is frozen by several federal court rulings, which held that the Constitution protects trans people from such naked discrimination In order for the ban to move forward, one judge found, the administration would have to prove it was “sincerely motivated by compelling interests, rather than by prejudice or stereotype.”
That will be hard for the administration to do — every member of the military and medical establishment asked about the ban has rejected it outright, with the chiefs of all four military branches stating firmly that the inclusion of transgender troops causes no harm to unit cohesion or troop morale.
There are currently four lawsuits against the ban, and it may well end up in front of the Supreme Court. To be sure, a ruling by the Supreme Court on this blatant government discrimination could have ripple effects in any number of areas — the military is, after all, the nation’s largest employer. And the case may well turn on whether a new justice is willing to act as an independent check on the president, or simply act as a rubber stamp.
How We Can Win
The stakes are high for this Supreme Court vacancy, but we can’t give up. Extreme Supreme Court nominees have been defeated in the past, and if Trump nominates an extremist from his shortlist, they can be defeated, too.
But to preserve the chance for equality at the Supreme Court, we will likely have to fight — and fight hard. Here are three steps you can take:
- Call your Senators and tell them to oppose the nomination of a narrow-minded extremist from Trump’s shortlist
- Join your neighbors in visiting your Senator’s district office to tell them how you feel during our #SaveSCOTUS Week of Action next week.
- If you’re near Washington, DC, join us, Planned Parenthood, NARAL, and a dozen other social justice organizations for a rally at the Supreme Court on Monday night at 8:30pm.
Together, we can still #SaveSCOTUS.