The Department of Justice filed a brief on July 1 in Karen Golinski's lawsuit seeking equal benefits at work so that she can insure her wife. As described by Chris Geidner of Metroweekly, it is "the single-most persuasive legal argument ever advanced by the United States government in support of equality for lesbian, gay and bisexual people." Geidner goes on to note that, although the case does not include transgender issues, "the government's previously described position that the same legal standard should apply to gender identity classifications could prove helpful for court cases looking at gender identity-based discrimination."
The Golinski case involves the Defense of Marriage Act, a statute that is designed to specifically affect the validity of same-sex marriages. While many same-sex marriages involve gays and lesbians, transgender and transsexual people who marry people of the same sex (however that may be defined in a particular state) are also affected. Beyond the effect on same-sex marriages, however, this case could affect other types of cases, involving discrimination against transgender or transsexual people in many settings. For example, similar principles might be applicable to laws regarding birth certificates and driver licenses, sex segregation in public facilities and sports, restrictions on the right to transition imposed on youth, divorced transgender parents, incarcerees, and military personnel, and insurance exclusions.
The brief acknowledges the role of both federal and state governments in a history of discrimination against gay and lesbian individuals, and it is clear to me that the same statement can be made regarding transsexual and transgender people. In fact, many of the anti-gay rules were equally directed at trans people, because there was no legal distinction in prior decades between trans and gay.
This history of discrimination is an essential element of the Administration's case that ''heightened scrutiny'' should be applied under the 14th Amendment's Equal Protection Clause to laws that classify people based on sexual orientation. The same argument can, and should, be made regarding laws that classify people based on gender identity.
I have made similar arguments in my law review articles on the subject of gender identity discrimination. Although my articles specifically examined the right to privacy as a basis for the principle of gender autonomy, an argument which deserves a great deal more usage than it is currently getting in the courts, I suggested a form of heightened scrutiny for the standard of review, just as the Department of Justice did in the Golinski brief. The Department of Justice brief adds a great deal of power to that argument.
Legal advocates for transgender and transgender people should scrutinize the arguments made in the Golinski brief to see how they can advance cases now in the system, as well as how they can aid trans people suffering under discriminatory laws that can make life well-nigh intolerable.
In my article, I mentioned nine categories of legal gender regulation that would be affected by substantive due process review, and as well as the equal protection analysis found in Golinski: 1) laws regarding sex designation on government-issued identification, such as birth certificates and driver licenses, 2) name change laws that restrict a person's right to use a name stereotypically considered of the opposite sex, 3) laws requiring or permitting sex segregation in public facilities, such as bathrooms and dressing rooms, educational settings, youth facilities, homeless shelters, drug treatment centers, foster care group homes, domestic violence shelters and prisons, 4) laws requiring or permitting sex discrimination in private settings, such as employment, sports and assisted reproductive technologies, 5) policies imposing restrictions or negative consequences on the right to transition or cross-dress, such as those imposed on youth, on divorced transgender parents, on adoptive parents, in workplaces, educational institutions and prisons, 6) exclusions for transgender persons in private and government health care, 7) laws that restrict marriage and/or civil unions based on gender, including rights contingent on the validity of marriage, such as intestate inheritance, right to sue for torts to a domestic partner, alimony, child custody, visitation and support, and insurance coverage, and 8) military service laws based on gender and transgender identity.
It always amazes and saddens me how many ways trans people are discriminated against by the law. And this list only covers public discrimination by government action. It's time to start taking legal action on these issues on behalf of trans people, using the ammunition provided by the growing list of legal authorities suggesting that these discriminatory laws violate our Constitution.
Image source: Supreme Court website