Legislation targeting transgender people – particularly trans youth – has rightfully been the subject of widespread attention. Arkansas, Mississippi, and Tennessee recently passed laws banning trans youth from participating in school sports, and South Dakota Governor Kristi Noem issued two executive orders implementing a similar ban. Arkansas has banned trans youth from accessing gender-affirming care. North Carolina, South Carolina, and Alabama have similar bills in the works. Proposed bills in Texas and Montana would make it more difficult to alter the sex designation on birth certificates. A proposed bill in Alabama would require schools to disclose young people’s gender identity to their parents or guardians.
These laws are rooted in a long history of policing Black and LGBTQ+ bodies and recycle the same strategies used to fight school integration. For example, it was common practice for decades for police to raid gay bars and arrest people for violating the so-called “three articles” rule prohibiting the wearing of clothes that don’t conform to one’s assigned gender. The 1969 Stonewall riot was a response to one such police raid.
Unfortunately, recent rulings reflect a court system increasingly complicit in this process. Anti-trans case law and legislation share a common thread: by treating the very reality and existence of transgender and nonbinary people as a matter of debate rather than a matter of fact, judges and legislators rationalize discrimination against trans youth and adults. This is compounded for BIPOC and low-income litigants, who often face obstacles to true due process and access to justice, frequently abandon civil claims, accept criminal pleas, and decline to pursue appeals due to their unfortunately accurate perception that they will face veiled hostility and bias. Faced with the prospect of open hostility and bias, trans and nonbinary litigants are unlikely to view the courts as a bastion of “equal justice for all.”
Kathrine Nicole Jett is a transgender woman who had a simple request: that the Fifth Circuit refer to her by her chosen name and pronouns (she/her). In a January 2020 decision authored by 2018 appointee Judge Stuart Kyle Duncan, the Fifth Circuit ruled that granting this application was entirely at their discretion and denied Ms. Jett’s request. The court did so even though she still had a criminal appeal pending, meaning that precisely when she most needed to focus on her court proceedings, she was instead forced to cope with the significant psychological and emotional distress that can arise from being misgendered and called by one’s birth name (“deadnamed”).
The ruling in Ms. Jett’s case resulted in the further indignity of it continuing to be captioned as United States v. Varner, guaranteeing that Ms. Jett will be deadnamed-by-citation in perpetuity. This decision sent a clear and chilling message to transgender and nonbinary litigants that they cannot expect to be treated with dignity, humanity, and respect in the Fifth Circuit.
Among those already citing Ms. Jett’s case is the recently decided Meriwether v. Hartop et al. A professor was disciplined by a state university for refusing to refer to a student who was a transgender woman using she/her pronouns and associated honorifics in class, in part because of his religious beliefs. In a decision authored by 2017 appointee Judge Amul Thapar, the Sixth Circuit determined that the professor had a viable Free Speech claim, among others.
Speech made by a government employee – as this professor still is – has different free-speech limitations than speech made in other contexts. The Supreme Court laid this out in Garcetti v. Ceballos: “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” However, the Sixth Circuit contorted itself into finding that how one refers to a student in class is a matter of academic freedom that supercedes the limitations of Garcetti. In so doing, the court departed significantly from case law. The court cast this as a studious aversion to academic censorship, but not everything that happens in a classroom is inherently academic. Taking roll, for example, is an administrative task that has no free-speech protections. Referring to a student is, likewise, effectively an administrative task – a means to the end of actually teaching that student the material at hand.
Having nonetheless disposed of Garcetti as an obstacle, the court applied the Pickering-Connick test to determine whether the professor’s refusal amounted to in-class speech protected by the First Amendment. This test asks 1) whether the subject being spoken of is “a matter of public concern,” and 2) whether the professor’s interest in misgendering the student is greater than the university’s interest in “promoting the efficiency of the public services it performs through” him. This enabled the court to rule that pronoun usage is controversial and therefore the professor was indeed speaking on “a matter of public concern” by misgendering a specific student. This test also gave the court the opportunity to rule that, assuming the professor’s factual allegations are true, the university’s interest in ensuring that its students are treated equally is weak compared to the professor’s free speech rights – “especially strong” here because they are rooted in “his core religious and philosophical beliefs.”
In its application of the Pickering-Connick test, the Sixth Circuit entirely failed to acknowledge the fundamental harm done to a student by being singled out in class for who they are, let alone the harm done to a transgender student when their identity is routinely publicly denied by an authority figure. The court also improperly failed to apply Bostock’s reasoning to Title IX. While the decision should be read for the limited value it holds – that a viable claim exists and therefore the case should proceed, not that the claim is true – it is a troubling reflection of the failure of our judiciary to view discrimination against transgender people as sex discrimination even post-Bostock.
These developments are actively harmful. The American Psychiatric Association has found that “discrimination and lack of equal civil rights is damaging to the mental health of transgender and gender diverse individuals.” The impact on trans youth is particularly profound, but not inevitable. The Trevor Project has found that 21% of transgender and nonbinary youth have attempted suicide, and 52% have seriously considered it. However, studies also show that suicidal ideation and behavior among trans youth decrease when the people in their lives consistently use their chosen names and when young people have access to gender-affirming hormone therapy (GAHT).
Meanwhile, evidence suggests that inclusion of transgender athletes has not had any impact limiting sports participation by cisgender athletes or cisgender women’s athletic achievements. Indeed, the data from states that already have transgender-inclusive policies suggests that girls’ sports participation may even increase in correlation with inclusive policies. When asked, only a handful of lawmakers sponsoring anti-trans sports bills said that they actually knew of any transgender athletes competing in their states.
Laws claiming to protect our young people actually endanger trans youth by unjustifiably denying them access to vital health care and undermining their civil rights. At the same time, they impose intrusive gender policing on all young people and deputize the adults in their lives into enforcing it.
The legal profession can and must mobilize in opposition to these efforts. As prominent activists Chase Strangio and Raquel Willis recently called for, staying educated about proposed legislation and educating others is vital. Contacting lawmakers to oppose these harmful laws are essential actions that we all can take, and should encourage others to take. Additionally, call or write your Senators to encourage them to support the Equality Act, which will add “sexual orientation and gender identity” to anti-discrimination laws – many of which do not currently include these protections. This law would protect transgender and nonbinary people from discrimination in employment, housing, credit, education, public accommodation, federally funded programs, and federal jury service. The fight for trans rights won’t be easy – but it is winnable if we rally together.
UPDATE: On April 15, the North Dakota legislature passed a bill that would ban transgender girls from participating in school sports. It currently awaits signature or veto by the governor. That same day, the Alabama legislature passed a bill that would ban all transgender athletes from participating in school sports, which now awaits signature or veto by that state’s governor.
Karen Levit is the National Civil Rights Counsel at the Anti-Defamation League. She previously represented young people in Family Court as a trial attorney for the Legal Aid Society of New York. All views her own.