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Why the Courts Are the Last Protection Against the Trump Administration's Attacks on Transgender Rights

The National Center for Transgender Equality is looking to the judicial branch to fight between the headlines to protect the legal rights of all Americans.
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During Barack Obama’s presidency, so many of the federal and appeals court judicial nominations were killed off by the Republican majority Senate that it left an uncommonly high number of openings for Trump to help fill; 103 to be exact. That’s over twice what President Obama inherited when he came into office in 2008.

Trump wasted no time in taking advantage of the opportunity to bend the courts to the will of his administration, and in his first year in office nominated more federal appeals court judges than any other president in U.S. history. “This is arguably the most significant thing the administration has accomplished” says Harper Jean Tobin, Policy Director for National Center for Transgender Equality (NCTE) told VICE Impact. “It’s placing a lot of extremely conservative judges on the courts who will, with very few exceptions, be there essentially for a lifetime. Many of these nominees are very young and they may be on the bench for 30 to 40 years.”


There are dozens of nominees currently being considered by the Senate who have a long record of holding anti-LGBT views. Many have specifically dedicated their careers to opposing transgender rights. While three nominees have withdrawn (Jeff Mateer, known for referring to transgender children as part of ‘Satan’s plan’), Trump is attempting to stack the courts with people who are equally as terrible for the progress and protection of the transgender community.

Take, for example, Mark Norris, the current state Senate Leader in Tennessee, who has backed almost every anti-gay and trans bill put forth in the state, from a transphobic bathroom ban to the “LGBT Erasure Bill” aimed at writing any protection for LGBT people out of state law. There’s also Howard Nielson, a Bush administration lawyer who fought marriage equality and tried to disqualify a judge from a case because he was gay. He also is notorious for promoting torture.

“We have never seen anything like this before. Nominees who who have records specifically of attacking transgender people and opposing basic protections for them. But that seems to be a major plus for the White House given how many nominees have this record,” said Tobin.

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Possibly the biggest threat looming currently is Kyle Duncan, who helped craft the legal case against transgender equality and represented the sponsors of North Carolina’s HB2 “bathroom bill”. It is expected that Duncan’s nomination will soon reach a vote on the Senate floor. With the Senate split 51-49 , just two Republican votes against a nominee would be sufficient to defeat his nomination.


“We still don’t have explicit protection for transgender people in most of our federal and civil rights laws,” added Tobin. “That means people across the country depend on protection through how our existing laws have been interpreted and enforced by courts over the years, particularly under the sex discrimination laws. The courts also rule on tens of thousands of cases every year relating to those issues.”

The good news is that many of the Trump administration's efforts to change the interpretation of those laws, like banning transgender people from serving in the military, have failed. But regardless of past failures to push discrimination, the threat is still real.

“The problem is, if the administration is able to fill the courts with judges who are willing to reject principles of equality and the civil rights laws that protect transgender people, that could have a dangerous impact on people’s lives, their ability to get an education, access medical care or earn a living,” Tobin said.

Unfortunately the current nominations are just the beginning. There are still over 100 vacancies and the president has three years or more to fill them. But Tobin says the situation is far from hopeless if the public takes action.

“It’s important for people know that it is possible to beat these nominees. Some have been approved by just a single a vote ,” she said, adding, “some nominees have been withdrawn by the White House for being too controversial.”

“It’s important for people to hear those voices, about how personal this issue is,” Tobin said. So to get your voice heard, you can share a letter signed by over 300 parents of transgender children opposing Duncan and others for their records of trying to demean and attack transgender people.