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Identity

This Election Will Determine the Fate of Trans Rights for Years to Come

A new president will have the power to rewrite rules and regulations and nominate Supreme Court justices who may determine the future of trans equality.

by Katelyn Burns
09 November 2016, 12:00am

Gavin Grimm, whose fight for bathroom access at his public school has reached the Supreme Court. Photo courtesy of Danna Singer/ACLU

Gavin Grimm, whose fight for bathroom access at his public school has reached the Supreme Court. Photo courtesy of Danna Singer/ACLU

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On October 28, it was announced that the Supreme Court would hear the case of Gavin Grimm, a transgender boy barred from accessing the boy's restroom at his Virginia school. With a shorthanded eight-justice court taking on fewer cases than normal, that Grimm's case will be heard at all speaks to just how important the issue of public accommodations (or the equal right of access to public businesses and establishments) for transgender and gender nonconforming people has become.

But with only eight judges, a possible (but rare) 4–4 split would settle Grimm's individual case without setting national precedent. A clear majority decision from the court is needed to set future legal precedent, and in the rare case when a split occurs, lower court rulings stand. That was the outcome this June in another controversial case, United States v. Texas, in which the Supreme Court left in place a lower court ruling that blocked President Barack Obama's plan to allow 4 million undocumented immigrants who were the parents of citizens to remain in the US. Should the justices split on Grimm's case, a similar case is likely to be heard again once the court is restored to nine members by a new president and Senate.

With other monumental trans rights decisions on the horizon, there's no doubt that transgender people have much at stake in this election—whichever presidential candidate America elects will set the agenda of the court for years to come.

It's been two years since TIME magazine declared that the country was at a "Transgender Tipping Point," but the full implications of trans equality are still being litigated across the country. This August, the Texas attorney general's office, on behalf of 12 other states and the governor of Maine (suing as an individual), sought and successfully won a nationwide stay against Department of Education Title IX guidelines for transgender bathroom and locker room access in public schools. Shortly after winning the injunction, Texas led another multi-state lawsuit, this one against new regulations prohibiting insurance companies that take part in federal health insurance exchanges from excluding transgender care from coverage.

The US Department of Justice sued, and the North Carolina state government countersued, over House Bill 2, commonly referred to as the transgender bathroom law. And when Massachusetts recently passed a public accommodations protections law on the basis of gender identity, religious groups and conservative organisations gathered enough signatures to challenge it with a public referendum. As a transgender person, it's nothing less than head-spinning to think that my birth state, liberal Massachusetts, will have a public vote deciding my right to exist in public life in 2018.

And for trans Americans across the country, Tuesday's election will be nothing less than pivotal. If Trump were to be elected, every rule and regulation advanced by the Obama administration to protect transgender people from bigotry would be up for grabs to be rewritten and struck down. The viability of every currently pending lawsuit on behalf of trans civil rights would be called into question. Not only would Trump and his homophobic running mate Mike Pence likely appoint conservative judges to the Supreme Court, they would also fill hundreds of open federal judge positions currently held hostage by Republican filibusters.

A Republican-majority Senate would also make life difficult for trans people, even if Clinton were to win, given that John McCain and numerous other Republican leaders have pledged to indefinitely block any and all judicial nominees put forth by any Democratic president. With so many trans-related lawsuits currently under review nationwide, that leaves trans Americans in a precarious position.


Watch: The Consultant Teaching Trans Women How to Be "Feminine"


Hillary Clinton has run the most overtly pro-trans presidential campaign in US history. At this July's Democratic National Convention, Human Rights Campaign spokeswoman Sarah McBride became the first openly trans person to speak at a major-party convention. Clinton's campaign has specifically pledged to protect transgender rights and defend trans equality.

Never before has the word "transgender" been used in a presidential campaign this openly. As trans people, though, we know that even our allies aren't always supportive. While equal bathroom access rages on as a national issue, several LGBTQ legal and advocacy groups, from the Gill Foundation to Freedom for All Americans to the National Center for Transgender Equality, have recently called for dropping public accommodations from a set of proposed LGBTQ nondiscrimination bills in states across the country, citing the difficulty in making an effective counterargument to conservative bathroom hysteria. In fact, the Gill Foundation said it would not give a grant to the ACLU because the civil liberties group rejects compromising over those bills.

Dropping public accommodations from these bills would disproportionately affect trans people because it can be difficult to hide our trans status for self protection. Bathroom use isn't the kind of issue cis LGBTQ people have to deal with—but it can devastate the average trans person's ability to go out in public. To think that the rights of trans women who threw the first stones at police before even Stonewall are de-prioritised behind other members of the LGBTQ coalition is a tragedy.

There are too few transgender Americans for the group to become an influential voting bloc on its own; that's why we have to depend on the benevolence of others to advocate on our behalf. With clearly defined threats and precarious allies to face down over the next four years, our justice system has become our best bet at achieving a fuller measure of equality in the face of attacks against transgender lives on the part of conservatives and the religious right. In this campaign, more than any other, the existence of trans people is up for a vote—and that fate will be decided on Election Day.

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