Last Tuesday in Reading during a Transgender Day of Remembrance ceremony, participants read the names of over 300 transgender people who were killed around the world last year. The Day of Remembrance comes at a time when a number of issues are confronting the transgender community, issues that could significantly impact the civil liberties of transgender and gender non-conforming people.
Now I don’t pretend to speak for this community nor purport to be thoroughly versed in its challenges, but I do read and watch the news, and I don’t like the way the wind is blowing.
It started in 2017 when the Trump administration announced (via Twitter) that most transgender individuals would be barred from military service. The policy also specified that those suffering from gender dysphoria could only serve if they do so according to the sex they were assigned at birth. Thankfully district courts across the country have blocked the policy from taking effect, but just this past Friday, Solicitor General Noel Francisco petitioned judges to take up related cases in lower courts so that the issue could be decided. Francisco argues that lower court rulings should not be imposing nationwide injunctions. He wrote that not enforcing the president’s ban has “posed too great a risk to military effectiveness and lethality." House Minority Leader Nancy Pelosi responded by saying, "The President's ban is a cruel and arbitrary decision designed to humiliate transgender Americans who have stepped forward to serve our country. This bigoted ban weakens our military readiness and our country, and shows this president's stunning lack of loyalty to those who risk all to defend our freedoms."
With the new makeup of the Supreme Court, the White House must feel especially emboldened, because now they want to essentially erase transgender individuals altogether. Under the Obama administration, Title IX, the federal civil rights law that prohibits against sex discrimination in federally funded education programs, individuals were also protected against gender identity-based discrimination. Now the Department of Health and Human Services (DHHS) wants to redefine gender identity under Title IX. DHHS issued a memo urging the agencies that enforce Title IX, such as the Departments of Labor, Education, and Justice, to define gender solely as what is listed on a person’s birth certificate. The DHHS memo also suggests that a person whose gender identity doesn’t match their assigned sex at birth must undergo DNA testing in order to “prove” their gender. Not only is this policy downright cruel and an infringement on civil rights, it flies in the face of scientific research on gender identity and further enflames the bigotry and harassment this community already faces. Remember-last year-300 people killed. Twenty state attorneys general, including PA’s Josh Shapiro, sent a letter to DHHS Secretary Alex Azar and Ed Secretary Betsy DeVos saying the states must resist this hateful proposal.
Finally there’s a situation literally close to home at the Boyertown Area School District. As you may remember, the school district’s current policy is to allow students to use facilities that match their gender identity. A lawsuit filed on behalf of cisgender students at the school challenging the inclusive policy failed in the Third Circuit Court of Appeals in June. A conservative legal group, the Alliance Defending Freedom, wants the U.S. Supreme Court to review the Third Circuit ruling. If SCOTUS takes up the case, it could have profound consequences for transgender people across the country.
Many advocates like ACLU attorney Ria Tabacco Mar argue that all these court “tussles” could be avoided if Congress would simply pass the Equality Act, which would add sexual orientation and gender identity as a protected characteristic under federal civil rights law, including Title IX. Nancy Pelosi has said the Equality Act would be a “top priority” in the new Congress.
Once again we find ourselves at a place where our courts are the last defense against the ill-informed and discriminatory policies of this reckless president and his administration. Hopefully the women and men sitting on the bench heed the wisdom of Mahatma Ghandi: “There is a higher court than courts of justice and that is the court of conscience. It supercedes all other courts.”
posted by Amy Levengood
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