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On Sunday, the brilliant Jeffrey Tambor was awarded his second straight Emmy Award for playing an older transgender father on Amazon's "Transparent." In addition to other awards to "Transparent," the Emmys highlighted the grappling with gender identity underway throughout American society. For instance, RuPaul (the drag superstar who does not identify as trans) won his first Emmy for hosting "RuPaul's Drag Race," a show in which trans individuals have regularly been contestants across the show's eight seasons.
It is a moment in which trans issues are not just newly visible in entertainment but at the center of the most vibrant American civil rights battle of the day. And, unlike recent battles over issues related to sexual orientation, where a tipping point emerged and momentum took over to push forward with major victories like marriage equality, this battle remains very much alive. As Jill Soloway, the director of "Transparent," said in accepting her Emmy, "We don't have a trans tipping point yet, we have a trans civil rights problem." As is the case with all modern civil rights struggles, that battle will play out in different arenas: in homes, schools and workplaces as trans men and women explain who they are to family, friends and colleagues; in legislative arenas at both the state and local levels as advocates — increasingly reliant upon the voices of trans individuals themselves to make the case — fight for protections and against laws such as North Carolina's infamous HB2 that enshrine limitations on transgender individuals in law; and, as is always the case in civil rights, in courtrooms.
In this litigation work, the primary goals are to get courts to see discrimination by employers on the basis of gender identity as a violation of sex discrimination laws and discrimination by the government as prohibited by the U.S. Constitution's equal protections and due process clauses. Quietly, much progress has been made on the first half of this effort; indeed, five federal circuit courts covering 26 states have said that gender identity discrimination is covered by sex discrimination laws such as Title VII to some degree. Indeed, most thought the first trans case at the U.S. Supreme Court would be an employment case in which the nation's highest court was asked to verify that federal employment antidiscrimination law does, indeed, cover cases of gender identity. Some thought that case might even be that of Patricia Dawson from Arkansas. After Dawson, an electrician, began to transition, she was told by her boss, "You do great work, but you are too much of a distraction and I am going to have to let you go." With the help of the ACLU, the "distraction" sued and is awaiting trial.
With the shift in attention to bathroom policies, however, it's just as likely that a bathroom case will be the first case that the Supreme Court takes up. One possibility is the ongoing case out of Virginia — GG v. Gloucester County School Board — involving a local school district's decision to deny a student, born a girl but identifying as male, the use of the boys' bathroom. Gavin Grimm ("GG" in the court records) prevailed in the lower courts, but the Supreme Court stayed the ruling until it could determine whether to hear the case. The fact that the Supreme Court is understaffed makes it less likely it will hear the case during this term. Even then, the GG case would likely end up as a question of whether the Obama administration overstepped its bounds in implementing Title IX rather than the more fundamental constitutional question of whether such treatment of trans students by public schools is constitutionally problematic. Ultimately, however, such a case will make it to the Supreme Court.
Another area of litigation that will be active is the disparate treatment of transgender individuals in the criminal justice system. These cases include not only the treatment of trans individuals in jails and prisons, but, just as importantly, the fact that so many trans folks are arrested at all. Amazingly, while we see disparate treatment of African Americans across the criminal justice system, the data for trans African Americans is stunning: Almost half of all black trans persons in the United States have been arrested. Many of these arrests — that may well raise constitutional concerns — is driven by stereotyping of trans individuals as sex workers.
As rapid as the change on issues related to gender identity has been in American life and law, the near future will likely witness a mix of wins and losses on the litigation front. Having seen similar battles play out on issues of race, sex and sexual orientation, legal advocates know that judges' hearts need to be moved as part of the process of shifting their thinking. Thus, during this period of legal change, advocates' energy is often better spent in education efforts about what the lives of trans Americans are really like than in the writing of briefs. While fictional characters like Tambor's Maura are important, it's real people that matter even more in this work.
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