[This piece is jointly authored by Mischa Haider and Bruce Hay.]
The relative quiet surrounding Neil Gorsuchs confirmation hearings reveals a deep lack of strategic thinking and effective coordination on the part of Democrats and progressive groups. There are compelling reasons to have drummed up loud opposition to Gorsuch, notably the theft of this Supreme Court seat by unscrupulous Republicans and the fact that Gorsuchs views are far out of the judicial mainstream, his deceptively soft-spoken manner notwithstanding. Democratic politicians have done a great disservice to our democracy by attaching insufficient importance to the composition of the judiciary, which has resulted in disastrous rulings gutting voting rights and allowing for the injection of vast amounts of money into elections. Crucial challenges to gerrymandering may be undermined by a right-wing ideological Supreme Court in the coming years, further entrenching minority rule by a Republican party increasingly marked by open misogyny, racism, and hostility to LGBTQ citizens.
The consequences for human rights and civil liberties of Democratic neglect of the judiciary which includes not only allowing the GOP to steal Merrick Garlands seat, but also leaving 25 percent of lower court seats unfilled at the expiration of the Obama presidency have been dire. The nascent movement for transgender equality is a key civil rights battle of our times, and Gorsuchs seating on the Supreme Court will be a victory for reactionary forces who are exploiting Trumps presidency to make the struggle more painful, bloody, and bruising for transgender people.
The religious right Trumps most reliable source of support has shifted its focus to trans rights.
Within weeks of his inauguration, the Trump administration withdrew executive guidelines issued by President Obama interpreting Title IX protections against sex discrimination in educational institutions as applicable to transgender students. The Obama guidelines meant that schools were required to allow trans students to use the facilities in accordance with their gender identity, and set a clear expectation for providing safe educational environments across the country. To make matters worse, the Trump administration withdrew the Obama guidelines in the midst of Gavin Grimms case before the Supreme Court, which has subsequently backed away from hearing the case.
Grimm, a seventeen-year-old transgender boy, is fighting for his right to use the boys restroom, to which his school denies him access because other childrens parents do not want him there on account of his genital makeup. By refusing to forthrightly hold that this is unlawful sex discrimination, the Court exposes our societys most vulnerable members to further humiliation and ostracism on the basis of simple prejudice, damaging their hearts and minds in a way unlikely ever to be undone as a more courageous Court once warned against in Brown v. Board of Education. The addition of an ideological extremist such as Gorsuch threatens the safety of transgender children like Gavin Grimm as they seek protection against tyranny through judicial avenues.
Having lost the battle on same-sex marriage, the religious right Trumps most reliable source of support – has shifted its focus to trans rights. Trans people are facing increased threats to their individual autonomy and freedom due to right-wing attempts to legally define sex as an immutable characteristic determined at birth by genital anatomy and chromosomes. Not only is this medically inaccurate, it effectively eradicates transgender people in the eyes of the law. Legislatures across the country are being flooded with threats of anti-trans bills that would essentially force trans individuals to live in the prison of their birth certificates. Texas has recently advanced a bill in the legislature that targets transgender women while the states Lieutenant Governor Dan Patrick is orchestrating an ugly campaign that many advocates fear will lead to further anti-trans violence. Legal action against states that pass bills discriminating against transgender individuals is often the only recourse for civil rights groups, as we have seen with North Carolinas HB2. The ideologically rightwing composition of federal courts, and especially the Supreme Court may come to endangering the basic rights of transgender Americans.
Nullifying federal civil rights protections for transgender people is part of a broader war of attrition against LGBT equality. Its central strategy is to portray the opponents of equality as victims their physical safety supposedly threatened by trans children in bathrooms, their religious liberty supposedly threatened by laws granting rights to LGBT people. These tactics appear to be working, and South Dakotas governor just signed the first anti-LGBT bill of 2017 into law, and it is framed as a religious freedom law. To thwart these attempts, progressives must expose the proposed religious freedom exemptions for what they are, no different in principle from the old claims for divinely ordained racial segregation.
A key part of the religious rights agenda is to stack the courts with judges who will uphold religious freedom exemptions to state and federal law, leaving LGBT people vulnerable to discrimination, conversion therapy, bullying, and violence. Furthermore, sanctioning discrimination under the guise of religious freedom will literally tear our schools, workplaces, and society apart at the seams and wreak legal havoc as theocrats of various stripes justify increasingly outrageous behaviors through fundamentalist interpretations of scripture. Therefore, it is essential that any judicial appointments be thoroughly vetted to ensure only candidates who are committed to civil rights for all citizens are confirmed. After the remand of Gavin Grimms case and the passage of South Dakotas unconstitutional religious freedom law, blocking the confirmation of extremists such as Neil Gorsuch has taken on an even greater urgency.
Supporters of human rights and civil liberties need to openly affirm transgender rights
Supporters of human rights and civil liberties need to openly affirm transgender rights, and push back against lies with the medical and psychological consensus on trans issues as well as point to recent survey evidence of broad public support for laws against anti-LGBT discrimination and opposition to anti-trans bathroom bills. In fact, the legislatures across the country lag far behind public opinion on LGBTQ rights including transgender rights, and disproportionately pander to the whims of a loud and radicalized base of religious zealots.
It has sadly become an all too common staple among the left to dismiss trans rights as “boutique” or suggest that progressives would be best served not to be “obsessive” about gender identity as recently stated by Tony Blair. These harmful and ignorant statements must be challenged and those who make such claims should be reminded of the deadly realities of transgender life today. Our nations judges have an obligation to protect all citizens, and fully understand that there is no “optional” box next to the humanity of transgender people because these are matters of life and death.
The deadly consequences of transphobia were clearly there for the world to see when Dandara dos Santos, a Brazilian trans woman, was brutally tortured to death in public by several men, with cheering onlookers. One of those involved in her murder filmed her ordeal, and that film has been circulating online, showing the world in gruesome detail what trans people endure across the globe. In America, the already staggering level of transphobic violence shows no sign of abating, and at least seven transgender women have already been murdered here this year. Beneath these atrocities, there is a dire crisis of discrimination, unemployment and poverty that transgender people confront on a daily basis.
Representative Joe Kennedy III read out the names of transgender women murdered in America as he pledged to fight for LGBT rights. We hope he keeps this promise, and that many others join him in blocking not only discriminatory bills but also judicial nominations such as that of Neil Gorsuch that will harm millions of Americans.