Bending Towards Justice
Dr. Martin Luther King, Jr. once said that “the arc of history is long but it bends towards justice” which is another way of saying that sometimes one needs to adjust their perspective in order to see a clear picture of how a movement is developing. There’s an analogy to be found in the study of statistics. Whether it’s in political polling or sports stats, experts caution against the “small sample size” because the small sample does not always, or even mostly, represent the whole in an accurate way.
At this current moment in history we find it easy, if not compelling, to be intensely focused on the political forces arrayed against the rights and lives of trans people. Whether it’s on the state level, where for example the legislature of Texas has been at war with itself because much of the membership is committed to oppression, or on the national level where the unfortunate administration is packed with Pharisees who pander to the faithful by attacking us, the threats are real and massive.
However, the picture is not all grim. Even though there’s a legitimate worry about the sort of judges Trump will be appointing, those who currently sit in those seats are stepping up with rulings that have the potential to take the conflict out of the hands of pandering politicians. Which brings me to this weeks major news – the case of Ash Whitaker.
Yesterday the 7th Circuit U.S. Court of Appeals upheld a preliminary injunction issued last September which directed the Kenosha Unified School District (in Kenosha, WI) to allow Whitaker to use the facilities designated for boys throughout his senior year. This is a truly massive win for trans equality. While other lower and administrative courts had previously held that Title IX (and Title VII) protected trans people from discrimination based on sex, this is the highest court to have so ruled and they went even further and held that such discrimination was unconstitutional under the 14th Amendment.
Also of note, the ruling made no citation of the Obama Administration’s Letter of Guidance from a year ago and so does not rely on that since-rescinded guidance for it’s basis in law as some lower court decisions have. This places the altered landscape out of the reach of politicians unless they take up the arduous task of amending the Federal CRA to clarify that gender identity is explicitly not covered (don’t put it past some Republicans to try) The reasoning in the decision is sound in light of Supreme Court precedent in similar case law having to do with gender sterotyping and when the opportunity arises, the 9th Circuit and some others will surly reach the same conclusion. The question is whether some of the more conservative courts will reach the opposite conclusion – particularly the 4th as it considers the Gavin Grimm case.
Still, the point remains, that even in our current dark days, our culture moves towards justice in many ways. Progress has certainly been slowed – and you know that I encourage passionate resistance to efforts being made to oppress us – but it has not ceased. Ash’s victory is ultimately a key foundation in victory for us all. It is alright to celebrate it.
Photo by: David Wilson