The U.S. Supreme Court case of Plessy v. Ferguson is widely considered one of the worst rulings in the country’s history. In 1896, a 7-1 majority essentially found that racial discrimination was legal according to the constitution. The precedent stood for nearly 60 years, during which the brutal racial oppression perpetrated through laws passed by states and communities under its legal cover remains an embarrassment to America.
What sort of ruling would have a similar negative effect on the transgender community? One could imagine perhaps, a federal court deciding that transgender people’s identities were dictated by their biological sex — that regardless of how severe our dysphoria, how committed we were to our transition, how completely we lived our lives as a member of our identified gender, legally and constitutionally we were still a member of our sex assigned at birth.
That’s exactly what looks about to happen.
It started when a transgender teen named Gavin Grimm was denied by the local school board the right to use the boy’s restroom in his Gloucester, Virginia high school. According to Buzzfeed, his teachers and administrators understood his needs and allowed him to use the correct restroom. However, under intense public pressure, the school board voted to deny him access, and force him to use either the restroom that corresponded to his birth sex or a unisex restroom located in the school nurse’s office. With the help of the American Civil Liberties Union, he filed a lawsuit in June. Grimm’s courage has to be admired. Only 15 at the time, he was determined to, in his words, “stand up for the rights of all transgender students.”
Recall those were heady times. The Supreme Court was poised to render a decision on the Obergefell case nullifying all bans on gay marriage across the country, something unthinkable just a few years earlier. Grimm and the ACLU could scarcely be blamed for wanting a similar victory for the transgender community. Their lawsuit was filed on two grounds. The first was that discrimination based on gender identity violates Title IX, the famous clause in a 1972 act of Congress that protects students from discrimination in educational settings. Federal agencies interpret that law as protecting the rights of transgender students. The second was based on be the equal protection clause of the 14th amendment to the constitution, which, if upheld, would produce a ruling with a far greater reach, affecting more than just schoolchildren. The potential effect could be that every transgender person everywhere in America would be legally entitled to be seen as a member of their identified gender.
But on July 27, the case began to go horribly wrong.
Buzzfeed reports that U.S. District Court judge Robert Doumar emphatically threw out the Title IX claim. He pointed out that the law permits separating male from female bathroom facilities and ruled that Grimm “is a biological female who wants to be a male.”
Anyone else beginning to feel just a bit scared?
The ruling came even before a justice department lawyer was allowed to testify, who had come with the express purpose of arguing the ACLU’s Title IX interpretation . In Judge Doumar’s words, “I decided that before we started.” The judge also made it a point to label being transgender “a mental disorder.”
He let the equal protection argument go forward, but it doesn’t look good. Even if we ignore his obvious indifference to the problems faced by transgender people, we have his own words to go by. “[Y]ou have an uphill battle,” he told Grimm’s lawyers.
Indeed, given that Doumar finds that our biological sex at birth dictates our legal gender, I can’t imagine the equal protection clause would help us much, since the judge would likely find that Grimm was being treated just like any other female.
I might have thought an argument based on free expression — the right to express ourselves as our identified gender — or on free association might have been more persuasive, but that’s only one of the many reasons why I’m not a lawyer.
What I am is a transgender woman watching helplessly in horror as my government appears poised to declare me forever a man.