Glimmer in the Gloom
I’m like you must be, if you’re paying attention. Constantly frustrated, angered, enflamed with passion. Admittedly about almost everything the current Administration (and the party in power) touches but even more so as it pertains to civil equality and most especially the legal state of trans people in this country, which is among their favorite targets. Week after week I trudge back to this space to, it seems, deliver more bad news.
For example, one of the worst items is that the GOP controlled senate continues to ram through on party-line votes Federalist Society nominated (with Trump’s rubber stamp)v the worst slate of judicial nominees in the modern history of this country. Uniformly they have three traits: Dominionist theology that influences their decisions, philosophies that affirm the rights of business over individuals, and being entirely unqualified because they are trying to pack the courts with the youngest feasible nominees in order to get the longest term of service possible from them. Already, one in ten circut court judges is a Trump appointee.
But it’s because of that reality that every court victory is so much sweeter. If we are very lucky we may be able to shore up enough precedent that Trumpster judges won’t be able to undermine us. Let me lighten your mood by telling you about (if you haven’t already heard) no less than three decisive victories in Federal court this past week.
Before I get to those, as an appetizer, it was reported some 10 days ago that the state of Idaho had consented to pay the attorney’s fees for two trans women who successfully sued to overturn the state law forbidding the modification of gender on a resident’s birth certificate. A Federal judge had found in March that such a restriction was unconstitutional under the 14th Amendment and this action seems to signify the state has fully consented and there will be no further appeal. While the decision is not binding elsewhere than the judge’s district it does establish a strong legal precedent which attorneys in the three remaining states with such laws – Tennessee, Ohio, and Kansas – can cite. As well, representatives of trans people in states that do not have specific laws but have a history of bureaucratic obstruction can also cite this ruling in seeking judicial relief.
On Tuesday last, a Federal judge for the Eastern District of Virginia denied a motion by the Gloucester School Board to dismiss the case brought by Gavin Grimm seeking protection under Title IX and the Constitution and stated Grimm had a claim under both. He ordered both sides to prepare for a settlement meeting. The case had previously been appealed to the Supreme Court who declined to hear it and returned it to the 4th Circuit. While it’s possible the school might try to bring it back to the appeals court (who had remanded it to this court) the tide is pushing strongly against the success of such a strategy.
On Wednesday a Federal district court in Missouri found that the state was required to provide transition related medical care to a trans inmate in their system. The judge found the existing policy of “freezing” an inmate at the level of treatment they were receiving at the point of conviction to be a violation of the 8th Amendment. Beyond the specific application, this is another instance of Federal courts recognizing that being trans is a legitimate biological medical condition which brings with it a very wide range of future implications.
Then on Thursday came the biggest win of all this week. In one of it’s repeated attempts to go on the offensive by attempting to co-opt the pro-trans argument, Alliance Defending Freedom (ADF – makes me nauseous to type the word “freedom” in relation to those theocrats) had brought suit against the Boyertown Area school district seeking an injunction against transgender inclusive policies specifically relating to restrooms and locker rooms. A three judge panel took less than an hour to tell ADF, in clear legal language to, basically, piss off with their nonsense claims. This ruling reaches the same end conclusion as the Whitiker case recently decided by a panel in the 7th Circuit. To be clear, in this case ADF was trying to usurp Title IX and 14th Amendment arguments that had thus far supported trans claimants and the court was having not even a little bit of it. The swiftness of this conclusion suggests that the 3rd Circuit would deny an en banc review and ADF must surely recognize that appealing to SCOTUS now, while the court is precariously balanced, would likely fail them. Moreover, SCOTUS tends to accept cases which would resolve competing decisions by circuits that have disagreed and that’s not yet the case.
To this point, ruling either under Title VII (employment non-discrimination) or Title IX (which applies to education) there are significant trans-positive rulings in the 1st, 3rd, 6th, 7th, 11th, and 9th circuits and Federal district courts in states within other circuits including Texas, Nebraska, Idaho, Virginia, Maryland, NY, Connecticut, Arkansas, Oklahoma, Minnesota and the District of Columbia. However, as solid as this track record is, it is NOT safe. Do not think you can neglect the courts forever and remain free. As long as Republicans have the majority in the Senate their will be a steady flow of new judges hostile to this body of law and willing to rule accordingly.
Don’t get mad. Vote.
Image from U.S. Federal government, in the public domain.