The Transgender Community will not Be Erased

By |2018-10-31T14:40:47-04:00October 31st, 2018|Opinions, Viewpoints|

It’s been a challenging week this week for members of the transgender community, their allies and supporters. Over the weekend, the New York Times revealed that officials within the Trump Administration are pushing for a narrow definition of sex in enforcing federal civil rights laws. By defining sex as “either male or female, immutable and determined by a person’s genitals at the time of birth,” governmental departments could refuse to recognize and address incidents of discrimination against transgender people in employment, education, housing and access to health care.
This latest proposed move is part of a concerted effort by this administration to promote discrimination against transgender people. From removing educational rules that permit trans students to use bathrooms in accordance with their gender identity to a transgender military ban (which is currently being enjoined by four different federal courts), the Trump Administration is doing its best to try to deny trans people basic rights and equal treatment under the law.
Protection under civil rights laws prohibiting sex discrimination is significant here because only 21 states — not including Michigan — specifically prohibit discrimination on the basis of gender identity. Federal civil rights laws bar sex discrimination by employers, schools, landlords and health care providers under laws such as Title VII, Title IX and the Affordable Care Act. Federal Courts have consistently held that federal civil rights on sex discrimination protects transgender people. Earlier this year, the federal 6th Circuit Court of Appeals, that covers Michigan, held in the American Civil Liberties Union’s case involving Aimee Stephens. Stephens is a transgender woman who was fired from her job at a funeral home because of her gender identity, and the court ruled that what happened to her was both wrong and constituted sex discrimination.
(Note: The funeral home is requesting that the U.S. Supreme Court reverse this decision, and the Trump Administration’s Department of Justice has filed a brief in support of the funeral home, arguing that transgender people are not protected under federal civil rights laws).
The idea that bans on sex discrimination cover transgender people is not new and it’s not something that the Obama Administration made up. State courts have ruled that way since the 1970s and federal courts have done so since the 1990s. In addition, a wide range of federal agencies have issued rules or regulations protecting trans people through bans on sex discrimination. Those agencies include the Equal Employment Opportunity Commission, the Department of Health and Human Services and the Department of Labor.
The Trump Administration Memo is proposing to take away these existing protections and to make anti-trans discrimination legal in every context that they can find. But the Trump Administration cannot rewrite federal civil rights laws. They cannot do away with decades of legal precedent in support of fair treatment for transgender people. More and more courts are holding that policies targeting transgender people have no place in this country. Make no mistake, the ACLU and other organizations supportive of LGBTQ rights will fight any attempts by the Trump administration to move forward with these hateful and hurtful policies.
In the meantime, one of the most important things that we can do is to vote this Nov. 6. Elections have consequences and it’s clear that the Trump administration policies against transgender people are a direct consequence of the 2016 presidential election. We have an opportunity to make voices heard and to send a message to our elected officials that transgender people will not be used as political pawns nor denied full equality under the law. The midterm elections offer a stark contrast in leadership as to how transgender people will be treated by our government. We have a choice and transgender people will not be erased!

About the Author:

Jay Kaplan is the Nancy Katz & Margo Dichtelmiller LGBTQ+ Rights Project staff attorney for the ACLU of Michigan.