Despite the fact that transgender people make up just three percent of the population, according to a 2017 GLAAD study, there is a concerted effort across the United States to limit our access to health care and civic spaces—an effort that has been fomenting prejudice on the state level for years, and is now being undertaken by the top levels of American government.
The New York Times recently exposed the Trump administration’s secret initiative that, if enacted, would definitively exclude trans protections from existent Constitutional civil rights statutes. The plan, according to the Times, is spearheaded by the Department of Health and Human Services and seeks to collaborate with the departments of Education, Justice, and Labor in a joint definition of gender as “a person’s status as male or female based on immutable biological traits identifiable by or before birth.”
This is essentially the bizarro inverse of what the Obama administration did in 2016, when the U.S. Department of Justice and the U.S. Department of Education issued an order clarifying that the term “sex” in constitutional anti-discrimination laws covers transgender people. Obama’s decision to formally recognize trans people’s rights was based on court precedent that had already ruled in this manner. Though Obama’s directives didn’t change the law, they clarified how it had been interpreted, and thus sent a message across the nation that trans people are a constitutionally protected minority.
That action enraged the right, which, in some states, levied lawsuits against school districts that have allowed trans students to use properly gendered school facilities, and launched multi-state-backed national lawsuits on behalf of state-funded religious health care professionals who objected to providing transgender care to patients.
All of that was already happening under Obama; it didn’t take Trump to spark a conservative backlash to the transgender civil rights movement. The Trump administration has simply picked up this mantle and brought it to a new extreme. Since he took office, Trump has attempted to undo his predecessor's work—doing away with Obama’s pro-trans executive orders, attacking medical care, trying to ban trans people from the military, and, now, to revoke the constitutional protections of all transgender Americans. By signaling that the federal government has a trans-exclusionary interpretation of constitutional laws like Title IX and Title VII of the 1964 Civil Rights Act, the Trump administration is creating a cultural environment that may make courts feel more confident in ruling against transgender people.
To be clear: Courts have not been ruling against us. They have consistently ruled in line with the Obama-era guidances around these laws, which has created a large body of legal precedent confirming that transgender people are already protected under the law. This is an essential distinction to understand, because it is easy to assume trans people are not protected by anti-discrimination laws. We are.
While there are social institutions in which trans people still desperately require laws protecting against discrimination, such as housing, existent constitutional laws that protect people on the basis of sex also protect transgender individuals on the basis of sex. We don’t need constitutional amendments to protect trans people from discrimination in school or at work—we already have it. Republicans simply wish to reinterpret these existing protections in a way that would exclude trans people. This seems particularly odd, since, as I said earlier, we’re such a small minority. Although there are so few of us relatively, transgender politics are an easy target for the right to label extreme, making us a useful battering ram to rally “normal” Americans behind—to the right, transgender people are more a symbol of unsettling change than they are people.
The Trump administration is creating a cultural environment that may make courts feel more confident in ruling against transgender people.
There are different tiers of legal precedent which guide the judiciary in interpreting law, and while the current areas of precedent for trans protections are legitimate, there has not been a ruling on this issue at the nation’s highest judiciary, the Supreme Court. That’s partially why the Trump administration’s actions are so alarming: Were a transgender discrimination case related to Title IX or Title VII to reach the Republican-majority Supreme Court, a ruling there could create the strongest degree of precedent yet: A ruling against trans rights at the highest level would set legal precedent that would subsequently inform all future rulings about transgender people seeking protection under these laws.
That’s pretty fucking insane, and utterly unsurprising—with respect to trans rights and so many other issues, Trump’s election was an alarming disruption to the promise of social progress under President Obama. In 2012, Joe Biden, then the Vice President, stated that the fight for transgender equality was the “civil rights movement of our time.” Obama extended protections including an executive order on behalf of the rights and welfare of this vastly underrepresented community, and accomplished, by far, more for trans Americans than any president in history.
Of course, transgender people have long lived in the United States in darkness, surviving the 20th century, when it was widely illegal to cross-dress and, for most people, trans medical care was virtually a fiction. Our communities have fought to survive through the AIDs plague in the 1980s (which continues to disproportionately impact trans women of color, who are at an exponentially higher risk of HIV than other communities); extreme violence at the hands of men, with national murders that increase year after year—because we are finally looking at this problem, its true scope is being progressively unveiled; absolute erasure throughout the nation, from the home (where our families have long rejected us), to civic spaces where our presence in public restrooms is restricted, to health care, where we strive for medical treatment despite having long been castigated as mentally ill, and to the church, which has widely spread propaganda against transgender people.
Trump had little to say about trans people on the campaign trail, but his racist, xenophobic, sexist, ableist, and otherwise broadly discriminatory talking points at political rallies made it clear that he was a voice for id-level anxieties reflecting some Americans’ worst natures. It became clear that Trump, the odd-looking reality television host and master of none could collapse the tenuous levees of social justice that transgender people and their allies have built to prevent social forces of hatred and ignorance from flooding in and submerging us completely, again.
When Trump was elected in 2016, I wrote about the threat that his Presidency poses to transgender Americans. In 2017, I wrote in reflection about a year for trans people under Trump, highlighting the transgender community’s resilience and resistance against a political mad dog propelled by his own pursuit of power—a person too stupid or too self-motivated to mind playing puppet for true political masters. I know that resistance continues and grows in strength. Today, in the wake of Trump’s latest—and broadest—assault against our community, I am overwhelmed by the the inevitability of this cultural moment. It was clearly predicted from the start.