Thursday, November 10, 2016
by Jeremiah Ho
I would agree with a recent NPR article online about the disjointed, state-by-state progress for gay rights in 2016, a year after marriage equality had prevailed at the Supreme Court. (See 2016 Has Been a Mixed Bag for LGBT Politics) In part, that’s understandable as we have been preoccupied with electoral politics since that time. It's also very much in line with how the incremental politics of gay rights progresses in general when a state has obtained marriage equality. Things slow down for a little bit for gay rights.
But that's not to say that this slowing is excusable. The divisive Presidential election is over. LGBTQ individuals still deserve the full equality and anti-discrimination protections that they do not yet fully possess. In the year after marriage equality, we have seen the backlash toward LGBTQ people in various context from healthcare to bathrooms. Last week, the most recent case to be taken up by the Supreme Court hopefully is our next wake-up to moving on with what is left to be done in fulfilling advances for sexual minority protections and rights under the Constitution. The Gloucester County case, which we recently posted on, has now crystallized into our next step. However, several challenges do exist to affect whether or not a victory will be eminent for transgender individuals facing public discrimination over the right to access the bathroom that reflects the gender with which they identify. The composition of the High Court with only eight Justices is one possibility that whatever ruling they give will not necessarily be as solid as if there were a full Court of nine Justices. What if the Court reaches a decision where the eight justices were to divide evenly on the doctrinal resolution of this issue?
Despite that uncertainty for doctrinal progress in that event, incremental politics of LGBTQ equality and rights advancement must continue to urge that sexual minorities are seen in the politics of dignity and respect. The last major words that the Supreme Court had in regards to the rights of sexual minorities--meaning from the decision to extend the fundamental right to marry same-sex couples--were written in a politics and a connotation of subdued and restrained respect for same-sex couples. Despite the legal significance for same-sex couples, the Obergefell v. Hodges decision couched their rights within a reverence for traditional marriage. Sure that did give gay couples the right to marry. But it was done in a way that showed how much they qualified for traditional marriage--instead of saying that same sex couples could create their own merits for unions without qualification. But only because under equality principles they always should have been allowed to do so.
Now with transgender bathroom rights, we have a new opportunity to use the existing dignity rhetoric from cases such as Lawrence v. Texas (and not the marriage cases, Windsor or Obergefell) to articulate the respect for sexual minorities for inherently who they are. Even if doctrinally the advancement for LGBTQ anti-discrimination were to receive a less stable and lasting treatment because of a gridlocked 4-4 decision by the High Court, I hope that the conversation about the right for transgender individuals to choose their own bathrooms will be framed within a discussion of respect and dignity for inherently who they are and not the respectability rhetoric left over from Justice Kennedy's marriage equality decision. A new conversation of respect and dignity in this context free from the marriage decisions would hopefully give us a restart toward the preferred inherent dignity and respect that will more easily move us to further progress for the advancement of sexual minority rights without and away from the lens of heteronormativity. Even if that is the only thing that comes from the Gloucester case, I would find that as a welcomed victory because it'll set us up better for the next challenge.