The recent events so far this year in terms of the fight for transgender rights are building up to something potentially big in 2017. A culmination of North Carolina’s controversial House Bill 2 being contested by the Federal Government, a vacancy waiting to be filled in the Supreme Court, and the prospect of Democrats taking the Senate in this election create the very real possibility of sweeping anti discrimination laws taking effect.
North Carolina and the Department of Justice are preparing to spar in court, with each one submitting a lawsuit against one another. The Department of Justice pronounced that House Bill 2 was discriminatory in nature, while Governor Pat McCroy claimed the Federal Government misinterpreted anti discrimination laws and ordered for a court ruling on the matter. What appears as a losing battle for Governor McCroy and supporters, the lawsuit performs more as a hindrance on complying with federal directives than anything else.
Looking at previous rulings and the recent interpretations of Civil Rights laws, it would be surprising for a Federal Court to rule in favor of North Carolina.
Federal Courts have already interpreted laws prohibiting discrimination based on sex as applicable to cases involving discrimination against transgender individuals. Just a month ago, the Court of Appeals for the Fourth Circuit ruled that Title IX applies to the right of transgender students to use restrooms consistent with their gender identity. And previous decisions including Glenn v Brumby have ruled in a similar fashion in protecting transgender individuals, with it being reiterated by Attorney Generals Eric Holder and Loretta Lynch, the Department of Education, and the US Equal Employment Opportunity Commission.
Even in the event of the courts ruling in favor of North Carolina’s discriminatory law, there would be little question as to if the fight would move to the Supreme Court. Due to House Bill 2 overlapping onto public schools and other public centers of education, a divergence in opinion on Title IX’s applicability is bound to create conflict in future scenarios. Much like the scenario regarding same sex marriage rulings by Circuit Courts and the subsequent Obergefell v Hodges case, the battle between these two entities may play out exactly as what happened in June of 2015. An abundance of states, cities, and counties already maintain comprehensive anti discrimination laws, previous court rulings setting the standards, and challenges to laws affecting large segments of the LGBT community create the ideal formula for a Supreme Court case.
This leads into the issue of filling the vacancy in the Supreme Court. Currently, President Obama continues to urge Congress to confirm Merrick Garland as the next Supreme Court Justice. Republicans who are resisting any vote on Garland have very little opportunities on placing a conservative judge in the Court. Garland may be their best, and only option, especially in the event of a Democratic victory and the nomination of a likely more liberal judge. In this case, the electing of a Democratic candidate to the Presidency, along with electing Democratic Congresspeople, would greatly shift the court to favor including the transgender community under current anti discrimination laws.
Congress has also had difficulty in passing the much needed Equality Act, a bill that wound amend the Civil Rights Act to include sexual orientation and gender identity as protected classes. The bill was introduced last summer but has yet to receive a hearing in a Republican dominated House and Senate. A split Congress won’t make the process of passing the bill that much easier, but progress made on the act in one of the chambers would give it much needed life. A push from the Senate has the potential to put pressure on the House to take action, especially on such a widely endorsed bill.
This may very well be a key moment in what could become another major landmark for LGBT rights, namely for the transgender community. Regardless of how the future pans out, these three important events, whether one or all take into effect, will create the stage for a tremendous advancement. It makes this year’s election cycle that much more important.
Photo Credit: PBS