With conservative advocacy groups pressing the new Donald Trump administration to reverse national policy that up to now has strongly favored transgender rights, this newest campaign for legal equality may have to shift its focus – to the states but with some continued emphasis on court cases, especially in the lower federal courts. The Supreme Court has yet to rule on the question, and a current case before it may or may not produce a definite ruling.
At this point, before the new government has taken over in Washington, the Obama administration’s transgender rights initiatives remain in place. That policy has been implemented by a series of agency guideline promoting transgender equality in the workplace and in schools and colleges that receive federal financial aid.
In addition, an independent federal agency – the U.S. Equal Employment Opportunity Commission – has made a series of decisions that seek to bolster transgender rights in the nation’s public and private workplaces.
If the Trump administration decides to move to reverse direction on this social policy question, it could erase the administration’s guidelines with little effort, and with no need to ask Congress to change federal law. That is because those guidelines are based upon a re-interpretation of existing civil rights law, specifically by treating bans on discrimination based on sex as applying also to discrimination based on gender identity – that is, the identity of being a transgender person (assigned one gender at birth, but later accepting one’s self as of the opposite gender; across the nation, some 1.5 million people identity as transgender).
The federal guidelines have been based on the two main federal laws against sex bias – Title VII against discrimination on the job, and Title IX against discrimination in education programs partly funded by the federal government. The Labor Department also has relied upon the Occupational Safety and Health Act to promote the new equality at work.
Those efforts are currently at least partly stalled, by a nationwide order issued by a federal trial judge in Texas in August, temporarily concluding that a group of 13 states challenging the policy will ultimately be able to prove that the government had no authority to adopt the guidelines interpreting Title VII, Title IX and the OSHA law to apply to bias against transgender people. (The government and the 13 states are still battling in the Texas federal court over an effort by the government to get the judge to cut back on the scope of the ban on enforcement.)
Title VII, though, is not only enforced by federal agencies within the Executive Branch. That also has been the law that the EEOC has applied to assure equal opportunity in the workplace based on gender identity. That would not be as easy for the new government to roll back, unless it can find a way to assert new control over that five-member commission. A majority of the members of the EEOC have more years to serve in their current terms, and probably could not be ousted without a major fight.
Under the law creating EEOC, they could be dismissed only “for cause” – that is, some serious failing in performing the work of the agency. A 1935 Supreme Court decision, in the case of Humphrey’s Executor v. United States, protected members of such independent commissions from being fired outright by the president.
If the agencies within the Obama administration’s direct official family – the Cabinet — are forced out of the field of gender equality enforcement, that would not, by itself, put an end to the transgender rights movement as a political and cultural effort.
Those advocates could continue to pursue lawsuits in court, seeking to gain decisions interpreting federal guarantees of equality of the sexes as including equality for transgender people. A couple of lawsuits are going forward, for example, in North Carolina, challenging that state’s ban on transgender equality in state-operated restrooms and workplace showers and changing rooms. Those and similar lawsuits are based primarily upon federal sex bias law, but also could be pressed on equal protection guarantees under the Constitution, although transgender people have not been recognized as a group protected by those guarantees.
The new Trump administration could resist those efforts in the courts, but would not control the outcome.
The Supreme Court’s view on whether sex bias also means transgender bias is not yet known, but it has agreed to examine that issue during its current term. It is doing so in a case in which a federal appeals court accepted the Obama administration’s views of what Title IX means; the appeals court did not give its own interpretation of that law’s ban on sex bias, choosing instead to defer to the government view.
If the Trump administration were to erase the guidelines on which the federal policy is currently based, the Supreme Court might not decide that case; rather, it could send that case back to the appeals court to weigh the government’s new position, if there is one. The Justices do have the option, though, of deciding themselves what sex bias means in federal law, even if the new government were to reverse the policy.
The possibility that the Supreme Court might actually reach the issue of what Title IX means as to gender identity will also enhance the importance of who fills the seat on the Court left vacant by the death of Justice Antonin Scalia – a seat that remains open, and perhaps will still be open when Donald Trump takes office.
Amid all of what it happening or may happen in the courts and within the administration, current and future, the transgender rights movement surely will continue to press for legal protection at the state and local government level. In fact, transgender rights appear to be more secure right now at the state and local level than at the federal level.
Currently, 19 states and Washington, D.C., protect transgender equality, and at least 225 local governments provide such protection. A group of 12 of those states and Washington, D.C., have filed a legal brief to support the federal government’s position in the case moving forward in the federal trial court in Texas. Their brief commented that their “shared experience demonstrates that protecting the civil rights of our transgender friends, relatives, classmates, and colleagues creates no public safety threat and imposes no meaningful finance burden.”
The transgender rights movement, which has existed for more than a quarter of a century, has been making gains more steadily in recent years.
(NOTE: This post also appears today on Constitution Daily, the blog of the National Constitution Center in Philadelphia.)