Transgender Rights: From Obama to Trump

231 Pages·2020·1.207 MB·English

by  Susan Gluck Mezey

Transgender Rights
This book examines the transgender community’s struggle for equality over
the last decade, comparing the Obama and Trump administrations’ stance
on transgender rights policies. Transgender rights claims have assumed
an important place on the nation’s policymaking agenda as society has
increasingly become aware that transgender individuals are subject to
discrimination because they do not conform to the norms of the gender
identity they were assigned at birth. With Congress virtually absent from
the policymaking process, the executive branch and the federal courts have
been chiefly responsible for determining the parameters of transgender
rights policies.
The study contrasts the Obama administration’s efforts to expand
equal rights for the transgender community, especially in employment,
education, and military service, with the Trump administration’s
determination to rescind the Obama-era initiatives. In their efforts to
do so, Trump administration officials have urged the courts to reverse
decisions extending the benefit of civil rights laws and constitutional
guarantees to the transgender community, arguing that gender identity
is outside the scope of these protections. Although most federal courts
have been inclined to accept the Obama administration’s perspective on
transgender rights, ultimately, this will be a matter for the U.S. Supreme
Court to decide.
The book is appropriate for students, scholars, and interested general
readers.
Susan Gluck Mezey is a professor emeritus of political science at Loyola
University Chicago; she holds a Ph.D. from Syracuse University and
a J.D. from DePaul University. Her publications include books on the
rights of lesbians and gay men, women’s rights, children’s rights, and the
rights of people with disabilities.
Praise for Transgender Rights
“This book offers a fascinating presentation of the important recognition
of the rights of trans people to dignity and equality—and the enormous
threats they face in the current administration.”
Lorie Chaiten, former Director of the Women’s and
Reproductive Rights Project of the ACLU of Illinois
“This is an excellent, and much-needed, book. It contrasts the actions
of the Obama and Trump administrations, diametrically opposed to
each other with respect to the rights of transgender individuals. With
thorough research and clear writing, this book will certainly appeal
to those with professional or personal interests regarding transgender
people. This text should also appeal to those who have scholarly interests
related to executive policymaking, as Professor Mezey’s book illustrates
the possibilities, and the limits, of policymaking that occurs outside the
halls of Congress.”
Barry Tadlock, Department of Political Science,
Ohio University
“Susan Mezey has again delivered a magisterial survey of the fight for
LGBTQ rights in our nation’s courts with a sweeping, up-to-date analysis
of the legal battles waged by transgender people in states and localities
and before federal tribunals.”
Patrick Egan, Department of Politics, New York University
Transgender Rights
From Obama to Trump
Susan Gluck Mezey
First published 2020
by Routledge
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and by Routledge
2 Park Square, Milton Park, Abingdon, Oxon, OX14 4RN
Routledge is an imprint of the Taylor & Francis Group, an informa business
© 2020 Taylor & Francis
The right of Susan Gluck Mezey to be identified as author of this
work has been asserted by her in accordance with sections 77
and 78 of the Copyright, Designs and Patents Act 1988.
All rights reserved. No part of this book may be reprinted
or reproduced or utilised in any form or by any electronic,
mechanical, or other means, now known or hereafter invented,
including photocopying and recording, or in any information
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Trademark notice: Product or corporate names may be
trademarks or registered trademarks, and are used only for
identification and explanation without intent to infringe.
Library of Congress Cataloging-in-Publication Data
Names: Mezey, Susan Gluck, 1944– author.
Title: Transgender rights: from Obama to Trump / Susan
Gluck Mezey.
Description: New York, NY: Routledge, 2020. |
Includes bibliographical references and index. |
Identifiers: LCCN 2019014716 (print) | LCCN 2019018350
(ebook) | ISBN 9781351120852 (Adobe Reader) |
ISBN 9781351120838 (Mobipocket Unencrypted) |
ISBN 9781351120845 (ePub3) | ISBN 9780815359395 (hbk) |
ISBN 9780815359401 (pbk) | ISBN 9781351120869 (ebk)
Subjects: LCSH: Transgender people—Civil rights—United
States—History—21st century.
Classification: LCC HQ77.95.U6 (ebook) | LCC HQ77.95.U6
M39 2020 (print) | DDC 323.3/2640973—dc23
LC record available at https://lccn.loc.gov/2019014716
ISBN: 978-0-8153-5939-5 (hbk)
ISBN: 978-0-8153-5940-1 (pbk)
ISBN: 978-1-351-12086-9 (ebk)
Typeset in Sabon
by Apex CoVantage, LLC
Contents
Preface vi
Acknowledgments viii
Introduction 1
1 The Transgender Experience 15
2 Transgender Rights in the Workplace 44
3 Transgender Rights in School 73
4 Transgender Rights in Public Facilities 113
5 Transgender Rights in the Armed Services 140
Conclusion 175
References 184
Index of Cases 210
Index 216
Preface
As a political scientist and attorney, I have published books on the rights
of women, children, and people with disabilities, emphasizing the groups’
litigation strategies and the role of the courts in the policymaking process.
More recently, my books revolved around political and legal controver-
sies surrounding the lesbian, gay, bisexual, and transgender community.
In my work on LGBT rights, I devoted most of my attention to policies
affecting lesbians and gay men, in part because of the assumption that
gains and losses in LGBT rights affect all members of the LGBT coalition.
In my research for this project, I learned that this assumption was erro-
neous, one that this book endeavors to correct by concentrating on the
transgender community’s struggle for equal rights. The purpose of this
study is to contribute to the scholarly literature on transgender rights
policymaking in the United States by examining the institutions that
have had chief responsibility for determining the contours of transgender
rights policies over the last decade—the executive branch and the courts.
During the Obama administration, the president and executive branch
officials demonstrated their commitment to equality for transgender indi-
viduals in a number of ways. President Obama called the nation’s atten-
tion to the needs of members of the transgender community and urged an
end to the discrimination against them. Executive branch officials advo-
cated for equal rights for the transgender community in policies related
to health care, veterans’ benefits, housing, family policies, employment,
education, and military service, among others.
In presenting their claims for equality, transgender rights advocates
turned to the courts, asking them to extend civil rights guarantees to fight
bias based on gender identity. To date, most courts have agreed with the
Obama administration’s approach to transgender rights, defining federal
civil rights laws broadly to encompass claims of discrimination because
of gender identity. However, without congressional action, the execu-
tive branch and courts have only a limited number of tools at their dis-
posal. Thus, although progress was made in furthering equal rights for
the nation’s transgender and gender nonconforming population, when
Obama’s term ended, it was clear more needed to be accomplished.
Preface vii
The change in administrations underscores the transitory nature of
administrative policymaking to secure rights for marginalized groups.
Although he had voiced support for the LGBT community during the
2016 presidential campaign, once in office, President Trump sought to
negate many of the newly won transgender rights. He appointed indi-
viduals known for their antipathy to transgender rights as cabinet and
subcabinet officials, supported efforts to expand religious liberty at the
expense of antidiscrimination policies, and barred the transgender com-
munity from military service. In contrast to the executive branch under
Obama, Trump administration officials ceased to advocate for transgen-
der persons, attempting to undo most of the advances made during the
Obama years, particularly in employment, education, and military ser-
vice. Moreover, in their efforts to reverse Obama-era policies, Trump
officials have urged the courts to rule against transgender rights claims
and sought to remove gender identity from the umbrella of key civil
rights protections. Thus far, most courts have resisted the Trump admin-
istration’s efforts to persuade them to adopt its position, but Trump’s
term is not over, and many unanswered questions about the future of
transgender rights remain.
On a personal note, I am puzzled about the energy devoted to efforts
to undermine the rights of this small group of Americans who mostly
want to be left alone and live their lives free from discrimination. I hope
this book can play a role in helping society gain a better understanding
of transgender individuals.
After discussing the transgender community’s experience in the United
States, the book examines the policymaking process in employment, edu-
cation, public accommodations, and military service during the Obama
and Trump administrations, highlighting the role of the executive branch
and the courts and the interaction between them in each policy arena.
Acknowledgments
I would like to thank Jennifer Knerr, Senior Editor at Routledge, for
being responsive, encouraging, and helpful at all stages of this project.
I also want to express my respect and admiration for the many people
who advocate for transgender rights policies. I do not know them per-
sonally, but in writing about them, I feel as though I have come to know
them and to appreciate their dedication and hard work in trying to right
the wrongs done to the transgender community.
As always, a special thanks goes to my husband, Michael, who
prompted me to begin this book, knowing that I was not ready to quit the
research, writing, and publishing phase of my career. One of the smartest
people I know, and a well-published scholar himself, Michael has been,
and continues to be, supportive of my work, willing to listen and make
suggestions when I am stuck on a sentence, a paragraph, or an idea. With-
out him, I would not have begun, nor could I have completed, the book.
I also want to acknowledge the other loves of my life, my children,
Jennifer Mezey and Jason Mezey, and their spouses, Jonathan Levy and
Deirdre McMahon. They continue to be a great joy to me, if for no other
reason than, because of them, Michael and I have the ultimate pleasure
of having Rebecca and Benjamin Levy and Norah, Paul, and Daniel
Mezey-McMahon in our family.
Some of the material on transgender rights policymaking during the
Obama years is drawn from research appearing in Beyond Marriage:
Continuing Battles for LGBT Rights. It is included here with permission
of Rowman & Littlefield.
A final note: all cited URLs were accurate at the time of the writing.
Introduction
Issues relating to sexual orientation and gender identity play an impor-
tant role in the political, legal, and social milieu of this nation. Indi-
viduals who identify as gay, lesbian, bisexual, or transgender—the LGBT
community—are commonly perceived as a single entity, but though
their interests, rights, and demands often intersect, the members of the
group are not interchangeable and, occasionally, are at odds with each
other. This book focuses on “the smallest and least accepted band of the
LGBT rainbow: transgender Americans” (Longman 2014).1 Specifically,
it traces the evolution of transgender policymaking over the last decade.
Members of the transgender community assumed an important place
on the nation’s policymaking agenda as society became aware that
transgender individuals, a minority within the LGBT population, are sin-
gled out for unique forms of discrimination because they do not conform
to the norms of the behavior and appearance of the gender identity they
were assigned at birth (see George 2018; Register 2017).
In 2015, the U.S. Supreme Court’s declaration that marriage equality is
a constitutional right signaled that “the next civil rights frontier belong[s]
to transgender people” (Barry, Farrell, Levi, and Vanguri 2016, 509).
Because of the increased visibility of transgender rights issues in 2015,
some dubbed this year as a “transgender tipping point” (Human Rights
Campaign 2016a).
Adopting much of the civil rights rhetoric of other minority groups,
public interest law and advocacy programs, such as the National Center
for Transgender Equality (NCTE), the Transgender Law Center (TLC),
and the Transgender Legal Defense and Education Fund (TLDEF), play
an important role in advancing the rights claims of transgender and gen-
der nonconforming individuals. The transgender community has also
benefited from groups representing the interests of sexual minorities more
generally, especially the Human Rights Campaign (HRC), the National
Center for Lesbian Rights (NCLR) the Lambda Legal Defense and Edu-
cation Fund (Lambda Legal), GLBTQ Legal Advocates & Defenders
(GLAD), the Gay, Lesbian & Straight Education Network (GLSEN), and
GLAAD (formerly [before 2013] known as the Gay & Lesbian Alliance