Observing International Transgender Day of Remembrance: Where Does the Law Stand Now?
Transgender rights in the United States have been attacked by the Trump administration. What have the courts had to say?
International Transgender Day of Remembrance vigil held in 2014 at the Metropolitan Community Church in Washington, D.C. Photo: Ted Eytan, CC BY-SA 2.0.
By: Miranda Z. Katz, Staff Member
On November 28, 1998, Rita Hester, a Black transgender woman, was brutally stabbed to death in her apartment in Allston, Massachusetts. In response to this tragedy, transgender activist Gwendolyn Ann Smith created a web project called Remembering Our Dead, which recorded violent incidents perpetrated against the transgender community.
Smith also held a vigil for Hester which led to the creation of International Transgender Day of Remembrance (“TDOR”), held each year on November 20. TDOR was created to honor the memory of transgender people whose lives were lost to acts of anti-transgender violence.
Across the world, this day is typically observed by attending a vigil and raising awareness about the violence transgender people face. Last year, vigils were scheduled in cities across the United States and around the world, including in Jamaica, Italy, Slovenia, South Africa, and Ireland.
In addition, some governments have formally recognized TDOR through legislation. For example, the provincial government of Ontario, Canada, unanimously passed the Trans Day of Remembrance Act, which requires legislators to observe a moment of silence on November 20. On November 16, 2017, Representative Joseph Kennedy III (D-MA) introduced a resolution in the United States House of Representatives to formally recognize Transgender Day of Remembrance. To this day, nothing has come of the resolution. In Virginia, however, the state government approved a resolution officially designating November 20 as Transgender Day of Remembrance.
In the last year, activists reported 388 deaths worldwide as a result of anti-transgender violence. For the last five years at least, Brazil has reported more anti-transgender homicides than any other country, with 169 deaths just last year. So far this year in the United States, at least 34 transgender people have been killed as a result of anti-transgender violence, up from 25 total deaths in 2019 and 22 reported deaths in 2018.
The Trump Administration’s Rollback of Obama-Era Protections
The increase in transgender homicides in the United States is especially concerning in light of the Trump administration’s continued rollback of Obama-era protections for the transgender community. On June 12, 2020, the Department of Health and Human Services finalized a rule rolling back nondiscrimination protections for transgender individuals under Section 1557 of the Affordable Care Act.
Section 1557 specifically protects against discrimination on the basis of race, color, national origin, disability, age, and sex. The Trump administration’s new rule interprets “sex” to mean “male or female and as determined by biology,” a reversal of the Obama administration’s interpretation which included gender identity, and thus protected the transgender community. This new rule allows doctors to refuse care for transgender people based on the provider’s moral or religious beliefs.
Separately, on July 26, 2017, in a series of tweets, President Trump announced that the “United States Government will not accept or allow . . . [t]ransgender individuals to serve in any capacity in the U.S. Military.” This discriminatory policy reversed the historic progress made by the Obama administration in doing away with such a ban.
Furthermore, on July 1, 2020, Secretary of Housing and Urban Development (“HUD”) Ben Carson proposed a new rule that would overturn the 2016 portion of the Equal Access rule which prohibited HUD-funded housing services from discriminating based on sexual orientation or gender identity. The new rule would allow publicly-funded shelters to turn away transgender people for a number of reasons.
And in yet another push to roll back transgender rights, the Department of Education threatened to withhold federal funding from Connecticut public schools that allow transgender students to participate in school sports. The Department of Education has claimed that the schools violate Title IX of the Education Amendments of 1972 by “den[ying] athletic benefits and opportunities to female student-athletes” who participate in school sports.
The above is just a sample from the long list of Trump administration actions negatively affecting the rights of transgender individuals.
A Welcome Victory in the Courts
Despite the setbacks under President Trump’s tenure, the Supreme Court recently gave the transgender community a surprising yet welcome victory. On June 15, 2020, the Supreme Court of the United States held in Bostock v. Clayton County, 140 S.Ct. 1731 (2020), that Title VII of the Civil Rights Act of 1964 protected against discrimination based on gender identity and sexual orientation. The text of Title VII outlaws discrimination in employment on the basis of race, color, religion, sex, or national origin.
Justice Gorsuch, writing for the Bostock majority, employed a narrow textualist approach to say that “sex” means biological determination of male or female, and Title VII prohibits employers from discriminating against employees “because of” sex.
He went on to note that it would be impossible to discriminate against a transgender or gay person without discriminating against the individual on the basis of sex. To demonstrate this, Justice Gorsuch posited a situation in which an employer has two female employees, one of whom was identified as male at birth but now identifies as female. If the employer fires the transgender employee because she is transgender, the employer is discriminating against her for being identified as male at birth. At the same time, the employer is tolerating the same traits the transgender woman now has in its employee who was identified as female at birth. If the transgender employee had been identified as female at birth, she would not have been fired. Ultimately, the Supreme Court writes, “An employer who fires an individual merely for being gay or transgender defies the law.”
It is not clear how the Bostock opinion applies to other statutes, including Title IX of the Education Amendments of 1972 and Section 1557 of the Affordable Care Act, discussed above. Title IX, with similar language to Title VII, prohibits discrimination in education on the basis of sex.
The Eleventh Circuit and Fourth Circuit United States Courts of Appeals have found that Title IX, through its prohibition of discrimination on the basis of sex, also prohibits discrimination on the basis of gender identity in schools.
Other circuits have implied that Title IX likely protects against gender identity discrimination. For example, the Sixth Circuit recently denied a motion for stay of an injunction ordering a school to allow a transgender girl to use the women’s restroom. Similarly, the Seventh Circuit has granted a preliminary injunction to a transgender student who had been barred from using the men’s bathroom.
Because Section 1557 of the ACA was constructed based on Title IX, a Supreme Court decision addressing whether Title IX applies to gender identity discrimination could have wide-ranging effects for the transgender community.
Transgender Rights Going Forward
Across the globe, national policies vary, ranging from laws allowing transgender people to change their legal gender without any requirement that they undergo surgery in Argentina, to laws proposed in Russia that would prohibit transgender people there from officially changing their gender at all.
As for representation, the transgender community in the United States recently celebrated a significant achievement: Sarah McBride became the first openly transgender person elected to a state senate in the United States. While McBride’s election is an undeniable victory for the transgender community, the future of transgender rights in the United States will depend, in part, on future presidential administrations. So far, President-elect Joe Biden has pledged to reinstate Obama-era policies that prevent discrimination against the LGBTQ community (discussed above), as well as to sign the Equality Act, which would forbid discrimination based on sexual orientation and gender identity in many areas of life.
But transgender rights will also depend on the Supreme Court and Congress. Judge Amy Coney Barrett’s appointment to our nation’s highest court has cemented a conservative majority on the Court. Perhaps, in keeping with precedent, the justices will apply Justice Gorsuch’s narrow textualist approach employed in Bostock to other statutes that have the same language as Title VII. But then again, members of the transgender community and their allies should not hold their breath waiting for any meaningful expansion of constitutional rights under the Fifth and Fourteenth Amendments.
As for Congress, a January 2021 runoff election in Georgia will determine which party gains Senate control, which will have a significant impact on the future of transgender rights. For example, if Democrats gain control of the Senate, legislation like the Equality Act is more likely to pass.
The future is uncertain, but for now, on this twenty-second International Transgender Day of Remembrance, we remember and honor the lives lost across the globe due to anti-transgender violence.
Miranda Katz is a second-year student at Columbia Law School and a Staff member of the Columbia Journal of Transnational Law. She graduated from George Washington University in 2019.