Changing Laws with Changing Times: How Laws are Evolving to Incorporate Transgender People

By Georgia Ray
Georgia Ray is a freshman at the University of Pennsylvania studying cognitive science with a minor in American public policy.

Transgender people in America face unprecedented rates of violence and discrimination.  72% of hate violence homicides in 2013 were against transgender women [1], and almost 60% of transgender Americans avoid using public restrooms for fear of harassment [2]. While 14% of Americans live in poverty, 29% of transgender people find themselves below the poverty line [3]. It is clear from these statistics that the transgender experience is different than that of the average American. As such, the law has been called to evolve in order to incorporate the transgender experience in a fair and reasonable way. This evolution has not been without debate, and the way the law approaches transgender rights and protections is constantly changing. That said, growth espouses change, and to ensure our national wellbeing, our laws must adapt to meet cultural transitions.

As with many changes in the law, different states have varying opinions and have instituted disparate legislative responses. As instituted by the Civil Rights Act of 1964, protected classes are groups shielded from employment discrimination [4] and with regards to treating transgender people as a protected class, 18 states, ranging from Hawaii to Iowa, offer varying levels of protection [5].

The primary issues that affect the transgender community are employment, hate crimes, conversion therapy, and transgender healthcare [6]. With differing legislative responses comes disparate protections. For example in Colorado, no laws exist regarding conversion therapy, but there is at least some mention of employment, hate crimes, bullying, and transgender healthcare. In New Jersey on the other hand, no laws exist regarding transgender healthcare, but there is at least some mention of employment, hate crimes, conversion therapy, and bullying.

Obviously, there are inconsistencies on a state to state level regarding these laws, but there are also inconsistencies in the law between the state and federal government. This is not an uncommon phenomenon, but it does affect the lives of transgender people everyday. Inconsistencies are one sided, however, because although a state law may not be true on a federal level, federal law applies to all states. This notion of federalism comes from the Supreme Court case McCulloch v. Maryland which said federal law is supreme to state law [7]. That is to say, if there was some sort of federal law banning conversion therapy, suddenly it wouldn’t matter that Colorado does not have an individual provision, because the federal statute would override individual state laws. With that in mind, the federal government has made many recent changes to the laws surrounding transgender individuals.

One timely example of these changes is the recent ruling with regards to transgender people in the workplace [8]. A employee at a Christian funeral home was fired when she announced that she would be transitioning from male to female. However, the Civil Rights Act of 1964 established sex as a protected class. The question lies in whether transgender people are protected under the overarching umbrella of “sex.” The 6th Circuit Court of Appeals recently ruled on this and Judge Karen Nelson Moore, speaking for the majority, wrote “discrimination on the basis of transgender and transitioning status is necessarily discrimination on the basis of sex, and thus the [Equal Employment Opportunity Commission] should have had the opportunity to prove that the Funeral Home violated Title VII  [of the Civil Rights Act] by firing Stephens because she is transgender and transitioning from male to female.” [9].

Another place where the changing laws regarding transgender people has been in the news is with regard to bathrooms. There is an ongoing debate as to which bathroom transgender and transitioning people should use. Adding to the controversy, many states have proposed “bathroom bills” that would prohibit transgender people from using their bathroom of choice. North Carolina is the only state that has passed a bathroom bill, and it has since been repealed. However, bathroom bills have also been considered in states ranging from Minnesota to South Carolina to Texas [10].

These type of bills differ constitutionally from the aforementioned employment provisions because there is no precedent for protection in the bathroom. There has never been a need to create a protected class with respect to which bathrooms people are allowed to use, so this debate falls under the purview of new law, rather than interpreting old law. As such, these two instances of bathroom bills and employment rights, combined, demonstrate the two responses that need to be taken in updating the law for modern times. There is a need to both improve and interpret old laws as well as create new ones. Whether it is a bathroom bill or a new anti-discrimination statute, American constitutional law is entering a new frontier as it seeks to explain, interpret, and enforce new societal standards and expectations.

Another instance that has been in the news recently combines the idea of bathroom bills and federal rulings as a federal judge sided with a transgender teen in the argument over which locker room he could use [11]. As the article points out, the judge’s decision to protect the teen’s decision to use the locker room he prefers “comes after the Trump administration last year abandoned Obama administration guidelines that directed public schools to accommodate transgender students.” [12]. In addition, the Department of Justice, under Attorney General Jeff Sessions has filed amicus briefs arguing that Title VII does not prohibit discrimination on the basis of sexual identity [13]. This is in stark contrast to the Obama administration’s Department of Justice. This demonstrates the back and forth that can occur in federal jurisprudence. This is important to remember because as trivial as it may seem to the average American, this repeal and subsequent reinstatement undoubtedly has an impact on the lives of many transgender people and children across the nation.

Overall, the constantly evolving laws regarding transgender people and their rights and protected status exemplify, more than anything, the way laws can evolve to reflect the issues of our time. Federal courts expanding the Constitution’s ban on unequal treatment of the sexes to include discrimination based on gender identity is a great example of the way in which law can bend to include more groups as they present themselves [14]. The law is not static, and in fact, the more it changes, the more reflective it is of society’s needs. The evolving laws regarding the transgender population demonstrates the first step in this process, and as they continue to develop, the process will only be strengthened.

[1] “Hate Violence.” National Coalition of Anti-Violence Programs. 2014. Accessed March 20, 2018. https://avp.org/wp-content/uploads/2017/04/ncavp_transhvfactsheet.pdf
[2] Trotta, Daniel. “U.S. transgender people harassed in public restrooms: landmark survey.” Reuters, December 8, 2016. Accessed March 20, 2018. https://www.reuters.com/article/us-usa-lgbt-survey/u-s-transgender-people-harassed-in-public-restrooms-landmark-survey-idUSKBN13X0BK
[3] Ibid.
[4] Civil Rights Act of 1964, Pub.L. 88-352, 78 Stat. 241 (1964).
[5] “Know your rights: Transgender people and the Law.” American Civil Liberties Union. Accessed March 20, 2018. https://www.aclu.org/know-your-rights/transgender-people-and-law
[6] “State maps of laws and policies” Human Rights Campaign. Accessed March 20, 2018. https://www.hrc.org/state-maps/education
[7] McCulloah v Maryland, 17 US 316 (1819)
[8] Wheeler, Lydia. “Federal court rules transgender people covered by law banning workplace sex bias.” The Hill, March 7, 2018. Accessed March 20, 2018. http://thehill.com/regulation/court-battles/377232-appeals-court-rules-transgender-workers-covered-by-law-banning-sex
[9] Ibid.
[10] Kralik, Joeleen. “‘Bathroom Bill’ Legislative Tracking.” National Conference of State Legislatures, July 28, 2017. Accessed March 20, 2018. http://www.ncsl.org/research/education/-bathroom-bill-legislative-tracking635951130.aspx
[11] Marimow, Ann. “Federal judge sides with transgender teen in challenge over school locker rooms.” The Washington Post, March 13, 2018. Accessed March 20, 2018. https://www.washingtonpost.com/local/public-safety/federal-judge-sides-with-transgender-teen-in-challenge-over-school-locker-rooms/2018/03/13/562a08a6-26de-11e8-bc72-077aa4dab9ef_story.html?utm_term=.e4bd902de4a9
[12] Ibid.
[13] Zellman, Johanna. “Department of Justice Weighs In: Title VII Does Not Prohibit Gender Identity Discrimination” Ford Harrison, October 6, 2017. Accessed March 29, 2018.
http://www.fordharrison.com/department-of-justice-weighs-in-title-vii-does-not-prohibit-gender-identity-discrimination
[14] Denniston, Lyle. “Appeals court: Constitution protects transgender rights” Constitution Daily, May 31, 2017. Accessed March 20, 2018. https://constitutioncenter.org/blog/appeals-court-constitution-protects-transgender-rights
Photo Credit: Flickr user m.gifford

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