The right made trans people the target. We refuse to leave them undefended

I started my career as a high school history teacher back in 1985. I taught my students about the Holocaust every year and was fortunate enough one summer to be selected for a special National Endowment for the Humanities seminar for teachers, led by Professor Lawrence Langer, a leading Holocaust scholar. Professor Langer came up with the term the “choiceless choice” to describe the no-win situations Jews were put in during the Holocaust, when there was simply no real choice to be made in the face of the genocidal Nazis. The idea has stuck with me for four decades.

It came to mind again when I read a recent Washington Post article following the Supreme Court’s adverse ruling in our case, BPJ v. West Virginia, on June 30, in which Julian Mark writes, “Critics, including some trans rights advocates, say the movement has rushed to tee up causes that the court’s 6-3 conservative majority is not ready to embrace.” While elements of the article were thoughtful, it is based on a flawed premise that warrants exploration.

First of all, the idea that “the [LGBTQ+] movement has rushed to tee up [trans] causes” is completely off the mark. There have been 2,446 bills designed to limit the rights of LGBTQ+ people introduced into state legislatures since 2022 -- at least one in every single one of our 50 states -- and 255 of them have become law in 27 states. The large majority of these laws are aimed at trans people. The LGBTQ+ movement didn’t “tee up” these laws: the opponents of the LGBTQ+ movement did, because they saw a political advantage to be won by picking on a small and relatively powerless minority and cynically exploited it. In other words, we didn’t pick this fight. We didn’t “tee up” trans issues. Our opponents did.

That left those of us who care about LGBTQ+ equality – and particularly the rights of trans people – with what Professor Langer would have termed a “choiceless choice”: either let these hateful laws stand or challenge them in a federal court system that we knew was not favorably disposed to our cause. Neither option is good. But, as the Holocaust survivor Elie Weisel said in accepting his 1986 Nobel Prize, “There may be times when we are powerless to prevent injustice, but there must never be a time when we fail to protest against it.”

Now I am not comparing what is happening in the US today to the Holocaust, nor am I saying the LGBTQ+ community is powerless. But we face a set of difficult choices, and we have chosen to fight, even though we knew going in that the odds were not necessarily in our favor. And I don’t regret that choice for one minute. What else could we do?

Some say we should have pursued remedy through state courts. Well, guess what: we have done so, and with some success. A case in point is Montana, where our allies at the ACLU used state courts to successfully challenge a law impairing the ability of trans people to get accurate identity documents and where Lambda Legal successfully challenged the state’s attempt to restrict access to health care for trans young people. We know this strategy can be effective, as we deployed it in the fights for marriage equality and to overturn laws that criminalized same-sex relationships. But it’s at best a partial solution, and to abandon the federal courts and – with it – the 14th Amendment’s promise of the equal protection of the law to all citizens, is not really an option. We must leverage every tool at our disposal, and we will continue to do so.

As wags often say, today’s dissent is tomorrow’s majority opinion – a premise we proved when we overturned the 1986 Bowers v. Hardwick decision, which upheld laws that criminalized same-sex relationships, in our landmark 2003 victory Lawrence v. Texas. The fight for equality is a long game, and we are in it to win it. There’s no other choice to be made.

Kevin Jennings is CEO of Lambda Legal, the co-counsel in BPJ v. West Virginia.

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