Dr. Jillian T. Weiss

Golinski v. OPM: How Does It Affect Gender Identity Discrimination?

Filed By Dr. Jillian T. Weiss | July 06, 2011 6:00 PM | comments

Filed in: Marriage Equality, Politics, Transgender & Intersex
Tags: Defense of Marriage Act, DOMA, due process, equal protection clause, gender identity, Office of Personnel Management, OPM

equal_protection_supreme_court.jpgThe 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

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Jay Kallio | July 7, 2011 1:55 AM

Totally agree. We trans people will ride on the coattails of the LG movement, and all our participation and involvement, sacrifice and loyalty to that movement will be well rewarded by the precedents won in this long battle for equality. We may lag slightly behind, and have a few specific battles that are uniquely our own to fight, but in most respects we are very much in this together.

Some days it blows my mind how so few people have accomplished so very much over the past 40 years. The progress seems to coming faster now, and I'm so glad I have lived to see it. I can think of many fallen comrades who did not, and I wish they could have had the satisfaction of seeing the fruit of their labor.

The OPM ever since the appointment of Scott Bloch (who is I believe is headed to prison now) has been working against anyone perceived as LBGTQ ETC.. go look at it's history since his appointment by Bush Jr. in 2003..

I often wonder is it just coincidence or something more sinister. I am conditionally offered a job with US Dept of Customs as a K-9 officer upon passing all the requirements. I do so..pass all requried test etc.. physical bla bla bla ... (Then Scott Bloch is appointed)only to have my physical rejected after passing it.. by doctors in Washington DC who never saw or met me.. due to broken leg skydiving in 1980 said made me unfit yet i passed all the requriments jump up etc.. climb ladders..

Some times discrimination is overt some times covert ... either way it cuts ones soul like no other knife I have ever known.. People talk of marriage rights, and it is all fine and i support and work to that end as well.. but until we can work and not be shuned discriminated against or outrite fired and overtly discriminated against like no other group of american citzens .. ENDA is much more important to me. If you can't earn a living wage you have dismal outlook on marriage of hopes of building a life with someone when you can not afford a place to live.

appointed to the OFFICE OF SPECIAL COUNCIL ... not the OPM, but OSC gives guidance to the OPM on matters of personnel matters and whistle blowers.. least as far as i understand it.

An actual law professor rather than an ignorant amateur like me wrote:

it is clear to me that the same statement can be made regarding transsexual and transgender people
Indeed it is. But it wasn't made, so it will take a whole new case, with the attendant risks of a different finding.

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.
It can, it should, it wasn't, it will have to be in some indeterminate future.

Furthermore, the large print giveth, the fine print taketh away. Footnote #14 on page #18 (IIRC) states that there it is "rationally arguable" that if heightened scrutiny is not applicable, but rational scrutiny is, then section 3 of DOMA is constitutional. It is not beyond the realm of possibility that rulings may come that say that sexual orientation requires heightened scrutiny (in the first case), but gender identity does not (in a follow-up case).

The Araguz case in Texas at the moment, where the Judge was most put out that he had to read council's submissions before rejecting them out-of-hand, claiming that just because his initial ruling contravened Texas law that was no reason to re-visit the issue, is possibly a good vehicle for such follow-up. This case essentially means that trans people cannot validly marry in Texas. Not anyone, not of either sex. Furthermore, existing state GOP platforms state this as an aim, to prevent Trans people from marrying anyone of either sex, and it appears this Judge has taken that to heart. The denial of due process may have been technically avoided by him adjourning the court for an hour to read the submission before rejecting it, but he gave no reasons for rejection - and had been ready to rule without reading it.

In any event, I believe there is a SCOTUS decision that marriage is a right, is there not?

Tall Stacey | July 8, 2011 10:25 AM

I too. Actually hired by the Census Bureau and 3/4 of the way through training they realized I was T after I honestly completed the fingerprint card (previous names). From there on it was “he" this sentence followed by "she” in the next, “he, I mean she”, and "she, no he, no, she….” until I called the supervisor on it, told him regardless of what he thought about my transition I expected to be referred to as she. It was 26 more days of reassignments here and special assignment there and need to cover for this one and we rescheduled for that and forgot to tell you about this …. and fired for “inefficiency”. With no paper work (except that after the fact, some 4 months after the fact) and conflicting statements by supervision….. and CYA by the Bureau. Discrimination by any other name is still discrimination and hurts just as much.

The most painful was when in an EEO "counselling" the supervisor commented that he would have to think about reinstating me “over the weekend”, apparently his Preacher said no.