Transgender Rights moving too quickly?

Bloomberg News's "constitutional law expert" Noah Feldman believes that SCOTUS should not have agreed to hear G. G. v Gloucester County School Board because it is too soon to address transgender equality.

It’s too soon, in cultural terms, for the court to rule definitively on the subtle issue of transgender rights, which poses powerful equality claims against society’s deeply ingrained male-female gender binaries. Transgender rights could benefit from a longer lead time for the lower courts to explore the different aspects of the question -- and for the American people to develop a consensus.

It took almost 20 years for the Supreme Court to go from Romer v. Evans, its first, tentative gay rights decision, to Obergefell v. Hodges, where it announced a fundamental right to same-sex marriage. The two decades were a product of Justice Anthony Kennedy’s own evolution, to be sure, but also of his judgment that gay rights would be more secure if the court recognized those rights alongside changing public attitudes, not in advance of them.

Attitudes on transgender rights also need time to evolve. True, in the last couple of years, we’ve had Caitlyn Jenner’s public transition, and films and TV shows like “The Danish Girl” and “Transparent.” But these media events, important as they are to changing attitudes and increasing recognition and equality for transgender people, don’t (yet) tell a full story of cultural change.

The point isn’t that it’s fair to make transgender people wait for equality. Rather, it’s that the movement for transgender rights could be damaged by moving too fast. The justices may not be quite ready to take a stand on the issue before it has percolated through the culture and the courts.

One wonders how many lives would damaged...and how much damage that would be...while we trans people have to wait for the culture to catch up.

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... as the law tends to be conservative (in the normal meaning of resistant to change). That the Supreme Court agreed to weigh in so quickly in G. G. v Gloucester County School Board worries me. The lower court held against the school board. So the Supreme Court agreeing to hear this case (unless there is a split between the 4th circuit and another circuit that I am not aware of) bodes ill for transgender rights, IMHO.

I also think the school board has a decent legal argument that 'sex' in Title IX does not include gender identity. That the Supreme Court is freezing the status quo for now (despite Breyer calling his vote a "courtesy") leads me to believe that the court is skeptical of this interpretation of Title IX, otherwise it would have left the lower court's ruling in place.

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Cant Stop the Macedonian Signal's picture

but that's a function of the legal system, as Crimson Buddha accurately portrays above.

I think it's disingenuous in the extreme to blur the lines between the culture of the court and the culture of the United States, between legal cases and activism. Not on Robyn's part, but on Feldman's. It's ridiculous to state that the court has to wait for the culture to catch up--they didn't wait for the South to catch up on Brown v Board; it's also ridiculous for activists to wait around for the culture to develop a sense of trans rights as if American culture just naturally, over time, always extends rights to more groups of people. That doesn't happen, generally; almost always, there were people fighting and pushing first--and then the culture "evolved."

I'm not sure I like the way people have been using the word "evolve" lately; it's turning into a weasel-word.

If we want to use evolution as a metaphor for social progress (which I'm not sure I do) it makes sense, perhaps, to acknowledge that evolutionary change often happens in response to a change in the environment, and that change has to come from somewhere.

The only place I agree w/Feldman is that probably the place that change should come from shouldn't be the Supreme Court; but then again, that's not an absolute. Brown v Board stands as a powerful exception to the rule he's implying.

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That is, is their another circuit court that has made an inconsistent ruling? I'm not aware of one. In my eleven or so years of practicing law, I've found it usually bodes ill when a higher court takes on a case without a conflict in the lower courts.

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...court level.

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I did a quick check before I posted my first comment, but nothing in depth. My gut tells me the Supreme Court jumping in now is a bad sign. On the bright side, things seem to be speeding up. Over fifty years between Plessy and Brown, almost twenty between Hardwick and Lawrence, and less than fifteen years between Lawrence and Hodges. We may not win tomorrow, but we're going to win within a generation if the trend holds.

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that Brown and this case are not the same. In Brown, no one would have or could have denied that the Constitution (the Civil War amendments) guarantied equal rights to people of color. So, the Court did not have to decide whether they had equal rights. It had to decide only if "separate but equal" was really, in operation, equal, as the Court had said in Plessy against Ferguson. (If IIRC, the railway cars assigned to African Americans in the Plessy case were actually the newer ones. nut I can't swear to that.) And that was a question of fact that Thurgood Marshall proved with piles of evidence showing unequal the "colored" schools actually were.

Do I think it's too soon? Hell, no. How old is our species? It's about damned time everyone had equal rights.

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Wink's picture

We've barely had a chance to catch our breath over the 20 year march toward gay rights. Barely. Now "they" want to extend those rights to people, who, when they were 8 years old, determined they weren't who their genetalia said they were. I'm really a boy, mom. I need a dick.
SCOTUS has a point. Pretty sure we're not yet ready for people with danglers using the girls room or ladies room, despite the fact it's happening before our very eyes, wanted or not. Hey! You with the danglers! Shower in the Mens locker Room! Come back when you've been snipped. And wax that butt! Too harsh? I'll eventually get there in 4, 5 years. But, SCOTUS is right. Give us non-LGBTQ a chance to catch our breath, catch up to the push for inclusion. Let us view a few more TV shows, movies, so we can wade in.

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elenacarlena's picture

The acceptance of gay marriage has shown that most of us are much more open to people being themselves, free of Biblical or other "shoulds" that don't make sense outside of some ancient authority. I think of trans rights as pretty much the same as gay rights.

That said, I always hated and continue to hate public restrooms and public changing rooms and public showers. Girls are not kind to each other when comparing bodies. I think it would improve society immensely if they would make them all private little restrooms with full walls and doors and locks for privacy, with maybe a common area with sinks. Guaranteed this would make a lot of children very happy, while solving the "safety fears" of the wingers.

Of course, they'll come up with some other reason trans isn't good, nosy ninnies that they are. But I'd still be delighted to see more privacy in public facilities.

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enhydra lutris's picture

African American lament.

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