Everyone who reads a newspaper or magazine knows transgender people are moving out of the shadows and toward equality by leaps and bounds. But three breaking developments in recent weeks demonstrate the breathtaking speed of this movement on the federal level. Congress, the Justice Department, and a highly respected federal judge, Jed Rakoff of the Southern District of New York, have taken significant action to support transgender rights. These victories illustrate, once again, that our biggest wins are happening on the federal level and in the federal courts, outside of legislation that can't pass nor win at the ballot box. The defeat of the Houston Equal Rights Ordinance is the most recent example of legislative failure.
After LGBT groups spent more than $3 million on the HERO campaign, there's a lot of hand-wringing. "Is our messaging right? Are enough transgender people out?" Theories abound. From my vantage point, all of this speculation is a waste of time. It misses the key weapon we have at our disposal to fight this injustice, which is where we should be concentrating our resources: the federal courts. Why fight uphill battles when we have a clear path to victory?
The groups for whom HERO was intended, including trans people, are already protected by federal law, as interpreted by the U.S. Equal Employment Opportunity Commission and many federal courts.
Most recently, on November 15, Judge Rakoff ruled that "intermediate scrutiny" of the government's actions will be used in considering the equal protection claim brought by a transgender man. Justin Adkins was allegedly handcuffed to a railing outside the bathroom in an awkward position at a New York police precinct and left without food for seven hours after being arrested during an Occupy Wall Street protest. He was separated from other detainees, denied food, and subjected to cruel laughter and inappropriately intimate questions by officers, all because he is transgender.
Ordinarily, the government need only assert any rational basis for its action. That standard is usually met easily by the government invoking generalized "security concerns" about dangers to transgender people. With this new ruling, the government must show that its actions were substantially related to an important government interest. The court allowed Adkins to bring his claim, citing Windsor v. United States, the landmark same-sex marriage case that went to the Supreme Court a few years ago. In that case, the U.S. Second Circuit Court of Appeals held that gay people were deserving of extra protection from government intrusion because of their history of persecution and political weakness. Judge Rakoff extends this holding to transgender people.
Just a day after this ruling, the U.S. Justice Department argued in court that the Americans With Disabilities Act does not exclude gender dysphoria, the medical term referring to distress caused by discrepancies between gender identity and sex assigned at birth, despite an exclusion in the statute for "transsexualism ... [and] gender identity disorders not resulting from physical impairments." This move effectively green-lights transgender bias claims under the ADA, long thought to be extinct, giving transgender people wronged in the workplace yet another avenue to seek redress, along with protections extended by Title VII of the Civil Rights Act.
At the same time, members of Congress convened an unprecedented task force dedicated to issues of transgender equality, accompanied by the first Congressional forum on violence against trans people.
These federal actions follow a wave of federal court advancements that support transgender protections, beginning around 2004, when a federal appeals court ruled that a transgender woman could file suit under the Civil Rights Act for being fired from her job as a firefighter. It was the first appeals court ruling to protect transgender people from sex discrimination under federal law. In 2011 the United States Court of Appeals for the 11th Circuit in Atlanta ruled that a transgender woman was illegally fired from her legislative editing job at the Georgia Assembly for being transgender. That decision also protected transgender people from sex discrimination under federal law. Many other federal district courts around the country have ruled the same.
These legal achievements are happening at the same time that transgender visibility is skyrocketing in popular culture. Celebrities like Caitlyn Jenner, Laverne Cox, Janet Mock, and Chaz Bono have put transgender people on the world stage and opened the public's awareness about the transgender journey. This can't help but play a role in raising the consciousness of the judges who are deciding key transgender rights cases. But transgender visibility doesn't often directly help the everyday transgender person trying to earn a living and provide for their families, particularly trans people of color, who experience staggering levels of violence and discrimination. Their stories of survival illustrate exactly why federal protections are so vital.
As an attorney who fights against employment discrimination in federal courts across the country, the Congressional Task Force, the Justice Department's ADA statement and the federal court ruling on "intermediate scrutiny" are more welcome news for the myriad of cases I'm pursuing for my clients. In Minnesota, for instance, I plan to use the Justice Department's ADA argument, as I face an expected motion to dismiss ADA claims on behalf of a transgender woman who alleges harassment and discrimination in her position with Deluxe Corp., one of the largest U.S. check-printing companies. This included insulting epithets, failure or refusal to use her correct name and gender pronouns, and denial of appropriate restrooms and health insurance, among other discrimination she faced. Having the new ADA weapon to augment existing Title VII protections can only help our chances for a resolution in this case and many others.
Transgender people in America today do not operate on an equal playing field. One need only look at the bleak statistics compiled by our nation's transgender rights groups to see how much work remains to improve transgender lives. Transgender people, particularly trans women of color, face huge disparities in employment and health care access and encounter constant harassment and violence at the hands of those who have no regard for their unique contributions. In late November we commemorated the Transgender Day of Remembrance, grieving the 20 plus anti-transgender murders in the U.S. this year alone, most of the victims transgender women of color.
I propose that the way we can make the greatest impact is by putting more resources into federal litigation for civil rights. As we are witnessing in case after case, when we bring transgender discrimination complaints to federal court, we are likely to win. It will take time and continued efforts to educate the public about the need to treat transgender Americans with the dignity and respect they deserve. Transgender visibility in the media will help the effort. But the most practical way we can change the climate is by seeking justice in our federal courts, with help from other branches of our federal government. The dominos are already falling in our favor. They'll all be down in due time.
JILLIAN T. WEISS is professor of law and society at Ramapo College of New Jersey and the founder of the Law Office of Jillian T. Weiss PC, a firm that represents transgender people who have experienced employment and health care discrimination based on gender identity or expression. Weiss is also the executive director of the National Transgender Bar Association, now in formation.