The U.S. Supreme Court recently rejected to hear a case that, if overturned, would have resulted in a major setback to the transgender community. The case made its way to the Supreme Court following an appeal from concerned parents challenging an Oregon public school district’s policy, which accommodated transgender students’ ability to use bathrooms and locker rooms that correspond with their respective gender identity. In this instance, the student asked to use the boy’s restrooms and locker room facilities and successfully did so until graduating. This move by the Oregon school district is not unprecedented. Many schools throughout the country are making policy changes to accommodate transgender students to conform to changing societal norms. However, these changes are not without controversy. Like many school districts, Oregon is facing backlash from parents who strongly oppose the policy change. Oregon, like many other states, is seeing this backlash result in costly lawsuits making some question the necessity for such changes. This controversy is not isolated in the Supreme Court; like many other civil rights issues, it is permeating within our government. This being said, the Legislative and Executive branches of our government are no strangers to tipping the balance in civil rights issues, whether it be progressive or conservative changes. A simple law passed by Congress or executive order from the President can impact the rights of transgender students in this country. Despite the many challenges transgender people face: the fight for recognition, representation, and a life free of discrimination continues in our school districts today.
Districts across the nation, are attempting to accommodate requests from transgender students who, like the Oregon student, were assigned female at birth but now identify as male or vice versa. Given the increase in school districts implementing similar policies granting transgender students the opportunity to use the restroom of their choice, guidance and the need for established precedent from the Supreme Court is highly desired. The Supreme Court’s silence in the Oregon case was enough to uphold the lower court ruling, which shot down a lawsuit from a group of parents who opposed the policy protecting transgender students in their district. The small group of parents’ opposing the school district’s policy’s primary concerns were that the school’s policy harmed their non-transgender kids. The parents argued that the school’s decision to permit transgender students to use the bathrooms of their choice, the non-transgender students’ privacy is violated and could cause them embarrassment by sharing intimate areas with students of the opposite sex. The parents’ legal claims stemming from the lawsuit assert that the District’s policy violates the U.S. Constitution and the Title IX federal statute, which protects students against discrimination. Alternatively, the District argued that the facilities had private stalls and showers and the other boys “never actually saw each other undressing.” In sum, the Supreme Court’s decision not to hear this case resulted in a win for transgender students benefiting from pro-transgender school policies. While the country has come a long way in recognizing LGBTQ rights, it is clear that the Supreme Court will not solve issues of discrimination against transgender persons overnight. However, this does not mean progress is not being made.
In the later part of 2020, the Supreme Court ruled on a case that extended protections to transgender people in the workplace under Title XII of the Civil Rights Act. The Court decided by a 6-3 vote that the key provision in Title XII, which prevented job discrimination surrounding an individual’s sex, and other characteristics, now includes protections for individuals who face discrimination over their sexual orientation or gender identity. Justice Gorsuch wrote for the majority, “An employer who fired an individual for being homosexual or transgender, fires that person for traits or actions it would not have questioned in members of a different sex.” While this landmark case does not extend to students and restroom use protections, the outcome is expected to have a major impact on the estimated 8.1 million LGBTQ workers across the county. The courts have a history of creating massive social change, to the point that some legal scholars believe the courts define societal norms or at least have a massive impact on them. As more cases come about, the Supreme Court’s decisions will begin to define and change the lives of many transgender people. But, in recent years with the implementation of more conservative justices, this fight doesn’t seem to be ending any time soon.
In the past decade, we have seen major high-profile elections with record-breaking voter turnouts that hinged on major social and economic issues. The Executive Branch today faces increasing pressure to enact the substantive societal change that voters want to see. One week after taking office, President Biden subliminally addressed transgender students’ participation in sports. President Biden stated, “children should be able to learn without worrying about whether they will be denied access to the restroom, the locker room, or school sports.” This statement is no surprise given his longstanding position on the issue. Alongside his statement, President Biden issued a mandate implicitly allowing transgender women the right to compete in women’s sports. The mandate does not necessarily set specific guidelines governing the participation of transgender athletes; however, agencies are tasked with reviewing their policies to ensure transgender children are not facing discrimination throughout their educational careers. While the President’s position supporting transgender athletes is clear, it does not necessarily settle the matter outright. In light of this, President Biden’s policy initiatives surrounding transgender issues are in stark contrast with former President Trump’s administration’s stance on the topic. The Trump administration did not hesitate to take steps to limit the rights of transgender individuals. Namely, the administration rescinded guidance previously issued during the Obama administration regarding bathroom access for transgender students. Although this was a turbulent time for Transgender activists, it is clear that President Biden is open to hearing their case and is ultimately in line with their agenda. However, we cannot say the same sentiment is shared in terms of individual states’ stance on transgender athletics
Today, 16 out of 50 states have transgender-friendly policies. This enables transgender students to participate in high school athletics. However, 14 states currently request medical proof or disclosures, and around 20 states either provide less inclusive policies or allow school districts to create their own policies. Because of these apparent differences in policy between states, it is hard to assess how individual states will react to their task of governing over this controversial issue. Another obstacle transgender women face is the backlash from other athletes. Many female athletes vehemently oppose President Biden’s position and raise concerns that people born of the female sex are physically disadvantaged in comparison to transgender females.
Notwithstanding the positions taken from both sides of the aisle, the challenge is not insurmountable. It is hard to say how the Supreme Court will rule on future cases given the background of the currently seated justices, but this does not deter activists from stating their case in court. As we continue into 2021, new cases are bound to surface and given the history and power of the Supreme Court, the proceedings, when heard, will change the lives of millions. President Biden’s administration being more outright in their support for the transgender agenda than the Supreme Court will ultimately strive to further the rights of transgender athletes and students in general. While Supreme Court rulings, or rather lack thereof, and Presidential mandates stem from two entirely different branches. We should expect increased discussions involving the rights of transgender persons in the Judicial, Legislative and Executive branches. After all, as President Biden stated, people deserve to be treated with dignity and respect regardless of their gender.
Joe Benavides, Law Clerk, J. Cruz & Associates, LLC