Scalia's Death: What Does it Mean for the Trans Community?

By Suzi Chase, 2/16/16

https://www.susans.org/2016/02/16/scalias-death-what-does-it-mean-for-the-trans-community/

It is likely that in the coming years a number of critical issues to the transgender community will be decided by the U.S. high court. The day is not far off when our bathroom rights will be before them. Their decision will make the difference between people seeing us as fully members of our identified gender (if justices rule in our favor) or as members of our birth sex (if they do not). The case of Gavin Grimm v. Gloucester County School Board has already reached the appellate level after being decided unfavorably by a lower court. Public opinion can be powerfully shaped by Supreme Court decisions. It took Brown v. Board of Education for the public to accept school integration as a reasonable idea. Obergefell v. Hodges' legalization of gay marriage has legitimized that institution. Enshrining our identities into law would be a powerful boost to acceptance of transgender people.

It's not just bathroom rights that may be decided. The issue of whether gender expression and gender identity are protected under sex discrimination statutes is controversial and has yet to see enough federal court attention to be considered established law. This has profound implications toward whether we are protected from employment discrimination, and has the potential for being settled by the high court as well.

Public opinion can be powerfully shaped by Supreme Court decisions. So the stakes are high when it comes to replacing Scalia with a justice who might be sympathetic to our plight.

My expectations are that we'll have to wait until next year to get a replacement in.  The Republican Senate is watching the Trump show and starting to feel that their base is very unhappy with them, which is going to result in a little red meat being thrown to the base as senators try to establish credibility as proper conservatives.  I think they know that putting Loretta Lynch on the SCOTUS would exhaust the last of most right and center-right voters' patience and create an outright Republican voter mutiny by November, so I really don't think they can let it happen regardless of how much the chattering classes criticize it or their opposition fires up its own base over it.   

I'm also a believer that the perception of the economy around election day is what will drive voters' decisions relative to the incumbent party.  This is not good news if you're a Clinton or Sanders fan.  That leaves us looking at a Republican nominee.  From an LGBT perspective, Trump is about the best-case scenario of the candidates pulling more than 3% of the primary vote (I actually like Kasich best of this bunch, but his chances are basically equal to mine).  The good news about Trump is that he doesn't have a divine mandate to screw over the LGBT community.  OTOH, I've seen very little evidence that he has a plan (yes, I know I could end the sentence there) to really reach out to us and he may put an extreme candidate out there to keep the base happy.  After that, it's all downhill. 

Altogether, I'd probably have rather kept Scalia.  I appreciated his humor and strict constructionist tendencies.  What we're likely to see replace him will probably be more of the "no government unless it's enforcing my moral code" than he was, and without the wit.           

Colleen,

Think you are likely right.  At least Scalia would likely have said:  "Deal with it at the State Legislature" or at the Congress.