The issue of transgender student rights under the Constitution continues to receive significant attention in the media. But the focus has been largely on the case of Gavin Grimm, a Virginia transgender student who, along with the ACLU, is challenging his school’s bathroom policy.
When the Trump Administration announced on February 22nd that it was reversing the Obama Administration’s “guidance” on the meaning of Title IX and whether the prohibition of discrimination in federally-funded educational programs includes protections for students whose sex is a matter of gender identity rather than biology at birth, Grimm’s prospects for keeping his date in the U.S. Supreme Court had to be seen as, um, grim.
Sure enough, the Supreme Court on March 8th vacated the appeals court decision that was the basis of the expected Supreme Court review and sent Mr. Grimm’s case back to the lower court for further consideration in light of the Trump Administration’s policy reversal.
Was this another setback for the advancing of transgender rights in this country? A delay perhaps, yes. But day is coming when the Supreme Court is going to have to weigh in on this issue.
Receiving far less attention that Ryan’s case has been the work of a federal judge in Pittsburgh, Mark Hornak, who just issued (on February 28th) a 49-page opinion in a case with strikingly similar facts. In that case, Evancho v. Pine Richland School District, Judge Hornak considered the request of three transgender students in the Pine Richland High School to stop implementation of a school board policy that required all students either to use a unisex bathroom or a bathroom based on their assigned sex (meaning, their sex at birth.)
In his detailed but very readable constitutional analysis, Judge Hornak concluded that the three transgender students had indeed met their burden in showing the school policy to be unconstitutional under the Equal Protection Clause of the 14th Amendment. Rejecting the School District’s concerns that someone might see someone they aren’t supposed to see in the bathroom, the Court explained the constitutional basis:
“The record before the Court reflects that transgender people as a class have historically been subject to discrimination or differentiation; that they have a defining characteristic that frequently bears no relation to an ability to perform or contribute to society; that as a class they exhibit immutable or distinguishing characteristics that define them as a discrete group; and that as a class, they are a minority with relatively little political power.”
Unlike the School District, which raised concerns that, frankly, are just silly and are based on ignorance about what it means to be transgender – concerns such as the worry that boys will dress up as girls just to get into the girls bathroom – Judge Hornak took the subject of transgender very seriously.
“As to these Plaintiffs, their transgender characteristics are inherent in who they are as people. . .” the Court wrote in its Opinion. “Moreover, as to these Plaintiffs, gender identity is entirely akin to ‘sex’ as that term has been customarily used in Equal Protection analysis. It is deeply ingrained and inherent in their very beings.”
Interestingly, the Court did not agree that the transgender students had made a sufficient case under Title IX, the federal civil rights law that protects against discrimination in educational programs. Because of the uncertainty created by the Trump Administration’s reversal on the Title IX guidance as to whether “sex” in the federal law is defined by gender assignment at birth or gender identity, Judge Hornak ruled that the Pittsburgh transgender students could win on that basis.
The Evancho Court’s opinion is a fascinating read and a primer on constitutional law regarding discrimination against transgender individuals and, really, discrimination against any class of people on the basis of sex or gender identity. It’s well worth reading and understanding.
Our Constitutional rights are protected in the Courts of this country, even when they may seem threatened because of an action taken by the President or a law passed by the Congress. That is the way our beautiful system – we are a government of laws not men, it is often said – was designed by the founders, just a mile or so from where I am sitting right now.
And though many worried, and did so loudly, about President Trump’s reversal on transgender policy, one can find comfort in this Court’s Opinion. Here we see the Court in action, carefully analyzing the Constitutional principles that establish protection for even the smallest and least powerful minority among our citizens.
As Judge Hornak wrote: “The Equal Protection Clause of the Fourteenth Amendment is neither applied nor construed by popular vote.”
What does that mean? The right to be free from discrimination under the Constitution cannot be taken away because of what the majority wants. Or based on the results of an election.
Though they may try.
Here is the link the the opinion (Evancho Opinion), with some of my highlights, hopefully to help ease your way.