During oral arguments in the Supreme Court case United States v. Skrmetti last December, Justice Amy Coney Barrett asked then-Solicitor General Elizabeth Prelogar whether there has been a history of discrimination against transgender people. The answer seemed obvious. Anti-trans discrimination is well-documented. At least for trans people, the instinctive response to Justice Barrett’s question is, “Look around.”
But what Justice Barrett was asking specifically, is whether there is a history of de jure—meaning explicit, government sanctioned—discrimination against transgender people. “At least as far as I can think of, we don’t have a history of de jure, or that I know of, we don’t have a history of de jure discrimination against transgender people, right?” Justice Barrett asked.
To answer her question, there is a long history of de jure discrimination against transgender people preceding the passage of the Tennessee law before the Court in Skrmetti, which bans gender-affirming medical care for transgender adolescents. From criminal cross-dressing laws, to bans on open military service, to explicit exclusions from protection under civil rights statutes, the government has systematically sanctioned discrimination against transgender people for being transgender going back decades.
As legal historian Kate Redburn has documented, throughout the twentieth century, local ordinances across the country threatened people who defied gender norms with prosecution and even prison sentences. Some even required people whose appearances did not match their sex assignment to wear badges visibly declaring their birth sex—a precursor to President Donald Trump’s own policy for transgender passport holders. These laws, in essence, made it a crime to be trans in public and equated trans existence with deviance in ways that legitimized decades of public and private discrimination.
Decades of criminalization harmed trans communities who were forced to the margins of society. Generations of trans elders died prematurely because of this history, which also now fuels the insidious myth that transgender people are “new.” The irony is that in order to avoid further discrimination, we must convince the Court that this discrimination occurred in the first place—and that it still occurs today.
Under the Supreme Court’s equal protection doctrine, there are four factors to consider when identifying whether a class of people receives heightened protection under the Constitution, which is called a “suspect” or “quasi-suspect” classification. In Skrmetti, the United States government under former President Biden and the private plaintiffs, who the ACLU and Lambda Legal represented, argued that the status of being transgender is a quasi-suspect classification.
The four factors that the Court considers when identifying a suspect or quasi-suspect classification are whether the group in question, in this case transgender people, have suffered a history of discrimination; share an immutable or distinguishing characteristic; that this characteristic does not affect their ability to contribute to society; and if they lack power to protect themselves in the political process. Transgender people easily satisfy all four of those considerations.
Being considered a suspect or quasi-suspect classification triggers a heightened level of scrutiny of the government’s action by the courts. In other words, the government must justify any action that distinguishes people based on one of these suspect characteristics. Race is considered a suspect classification, for example, triggering the most scrutiny by the courts, while sex is a quasi-suspect classification, triggering an intermediate level of scrutiny..
In the case of Skrmetti, the central question before the justices is whether heightened scrutiny applies because Tennessee’s ban on medical care for transgender adolescents discriminates based on sex and/or transgender status. How the justices answer that question will not only affect the fate of the 24 state laws banning medical care for transgender adolescents but potentially, the myriad other examples of local, state, and federal policies targeting transgender people.
But what if there had not been decades of government discrimination against transgender people? How long of a history must there be for our Constitution to protect us from more discrimination?
There certainly has been unrelenting government sanctioned discrimination against transgender people over the last five years—and even more so in recent months.
On the first day of his second term, President Trump declared that there are only two sexes determined at conception and that having a gender identity that differs from a person’s sex at conception is a “false claim.” To implement that proclamation that transgender do people do not exist, over the past two months, the federal government has mandated discrimination against transgender people in school, employment, housing, and health care and has sought to purge thousands of openly serving transgender people from the armed services. Through executive order, the President has declared that being transgender is inconsistent with “an honorable, truthful, and disciplined lifestyle” and that supporting access to health care for transgender youth consistent with medical recommendations and clinical practice guidelines is tantamount to “child abuse.”
These actions by the federal government coincide with escalating attacks from state governments. The ACLU is currently tracking over 525 anti-LGBTQ bills pending in state legislatures, 80 of those in Texas alone. One such bill pending in Texas would make it a felony to assert a gender identity different from one’s sex assigned at birth. In Arkansas, a pending bill authorizes lawsuits against anyone that facilitates “social transition” including by giving someone a gender non-conforming haircut.
Let’s say the Supreme Court decides that transgender people have not suffered a sufficiently long or sufficiently clear history of discrimination to warrant heightened scrutiny. That would set a chilling precedent for when the government decides to target a small and politically unpopular group for discrimination.
We are getting dangerously close to making it a crime to exist as a transgender person in the United States. If that does not trigger scrutiny by the courts, then what will it signal to government leaders who are looking for groups of people to blame for social, political, and economic conditions?
As Justice Sotomayor noted at the Skrmetti arguments, “When you’re 1% of the population, or less, [it’s] very hard to see how the democratic process is going to protect you.” That is abundantly clear right now.
The question that remains is whether transgender people are going to have to ride out decades of laws banning us from schools, cutting off our health care, criminalizing our doctors, and demonizing our families, before the courts step in to protect us? And if we do, who will document the history of de jure discrimination to prove that we warrant protection?
The post Why Trans People Must Prove a History of Discrimination Before the Supreme Court appeared first on TIME.
