This week, a federal judge in Virginia made an unambiguous plea to the United States Supreme Court.
“The momentous nature” of transgender bathroom debate, he said, “deserves an open road to the Supreme Court.”
The US Fourth Circuit Court of Appeals appeared to prepare just such a road Tuesday, standing by its decision to force schools in a Virginia school district to let transgender students choose their bathrooms.
But whether the Supreme Court will take it is an open question. Polls have shown that many Americans are still struggling to understand transgenderism, and court-watchers say that the justices are often loath to be seen as too far out of step with public values.
Yet, in recent years, state and federal courts have consistently ruled in favor of those seeking to define their gender identity. And polls also suggest that empathy has started to play a role in how society and the judiciary are dealing with transgenderism.
“Ultimately, the issue is won or lost on the public level, not on the legal level, where we have to become familiar with what it means to be transgender,” says Katherine Franke, the director of the Center for Gender & Sexuality Law at Columbia Law School in New York. It’s clear that “there’s a tremendous anxiety around gender identity and what it means to be a man or a woman – which, in turn, are pretty fundamental questions.”
Indeed, for Judge Paul Niemeyer, the Fourth Circuit judge who dissented against the court’s original decision in the Virginia case, such fundamental questions mean “time is of the essence.”
The legal landscape
At issue is the very definition of what sex is. He rejects the notion that Congress ever intended it to be a fluid concept. Therefore, he wrote Tuesday, the Obama administration is misinterpreting law.
“The majority [of the Fourth Circuit] and the Administration – novelly and without congressional authorization – conclude that … they can override these provisions by redefining sex to mean how any given person identifies himself or herself at any given time, thereby, of necessity, denying all affected persons the dignity and freedom of bodily privacy,” he wrote Tuesday.
Others contest such statements.
“Right now, there is no right or wrong answer, because we’re interpreting the word ‘sex,’ and there’s no legislative history of what Congress meant when it added sex” to the Civil Rights Act of 1964, says Ms. Franke. “Ever since then, we’ve had to figure out, what does [sex within the context of identity] mean?”
The need for legal clarity is growing as the legal landscape has quickly become a thicket of cases.
For example, North Carolina is suing the federal government because it disagrees with the Obama administration’s judgment that transgender residents are subject to civil rights protections. Eleven other states are suing the Obama administration because they disagree with the president’s directive to public schools to allow bathroom choice to transgender students.
But the Supreme Court likes to let these issues “ripen in the lower courts” before weighing in, largely to make sure that the will of the unelected “is not getting out ahead of society,” says Ms. Franke.
When courts have taken on the issue, however, the trend line is clear.
Back in the 1970s, several federal cases did not interpret gender identity as protected under the 1964 Civil Rights Act. One involved a male airline pilot who was fired – legally, a federal appeals court ruled – for his decision to become a woman.
Yet in more recent years, lower federal courts have supported the right of people to retain their jobs even if they’re transitioning to the other gender. In 2005, a male police officer who lived as a woman while off-duty earned a reputation among other cops as a homosexual cross-dresser, which led to a demotion. The Sixth Circuit Court of Appeals upheld a ruling that the department had illegally discriminated based on sex.
According to the Equal Employment Opportunity Commission, some 32 federal and state cases during the past 40 years found that, especially in employment matters, firms can’t discriminate against employees seeking to claim a gender identity different from their birth sex.
Open minds, unsettled hearts
In that way, the court could be mirroring society.
A CNN/ORC poll last month found that 57 percent of Americans oppose bathroom bills that bar transgender people from using the bathroom that matches their gender identity. This, despite the fact that 85 percent of respondents didn’t know a single transgender person.
“Americans’ familiarity with gay people in their personal lives was a huge contributing factor in reshaping public opinion over gay rights in favor of same-sex marriage so quickly,” wrote the Washington Post’s Amber Phillips. “Clearly, there's still a lot we don't know/a lot that isn't settled about public opinion in the bathroom debate. But the initial results look promising for LGBT advocates….”
For American conservatives, in particular, the unsettled sense of the debate remains palpable.
In response to the Obama administration’s warning to school districts to make concessions for transgender students, the Rev. Russell Moore, director of the Southern Baptist Convention’s Ethics and Religious Liberty Commission, wrote that “the way of discipleship is to settle on the fact that we serve a God who knows more about humanity, and more about us personally, than we know about ourselves.”
In the next breath, however, Mr. Moore warns that “the sexual revolution, chaotically, wants to tell us that gender means nothing and that gender means everything. Neither is true.”
Such personal insights on both sides are in part driving the societal debate over transgender bathrooms – and likely the looming legal ones, as well.