In Practical Equality: Forging Justice in a Divided Nation, constitutional law expert Robert L. Tsai applies lessons from history to contemporary struggles for equality. In “Transgender Persons as the New Scapegoats,” he examines North Carolina’s bathroom bill and President Trump’s military ban, recommending a fact-based approach to untangle fear and prejudice.
In March 2016, North Carolina became the first state in the country to enact a law that required individuals to use the bathroom that matched the gender listed on their birth certificate. State legislators enacted HB2 in response to the city of Charlotte’s decision to amend local anti-discrimination laws to encompass “sexual orientation, gender expression, and gender identity.” This policy change allowed a transgender person to use whatever bathroom felt most comfortable to use, a development that alarmed a number of people in the community. The state law not only supplanted Charlotte’s anti-discrimination policy, it also barred cities and counties from passing any of their own anti-discrimination laws in the future. At least 24 states have considered such laws. Some public schools have also gotten into the act. How should disputes of this sort be handled? The past serves as a guide. Back in 1996, the Supreme Court struck down a referendum passed by Colorado voters that amended the state constitution so as to bar legal protections for anyone on the basis of homosexuality. That ruling, Romer v. Evans, is remembered as a controversy about anti-gay animus. But, in fact, a close reading of the case shows that it contains two independent rationales. First, heavy burdens foisted on one group must be matched by sound, rather than irrational, justifications. Second, status-based hostility is always out of bounds. Either rationale, standing alone, explains the outcome. And that also means that the case serves as the perfect roadmap for equality by other means. In a critical part of Justice Kennedy’s opinion, he observes that the referendum singles out some people based on a single trait—their sexuality—while broadly disabling legal protections of every kind for members of that group. Consequently, the law “indicts on them immediate, continuing, and real injuries that outrun and belie any legitimate justifications that may be claimed for it.” Colorado offered two reasons for the law: preserving the freedom of people who object to homosexuality not to associate with gays and lesbians, and conserving resources to battle other forms of discrimination. The Court rejected both of these arguments because “they were so far removed” from the broad scope of the law that it was “impossible to credit them.” The justices could have stopped there, but they didn’t. Instead, they went on to say that “the amendment seems inexplicable by anything but animus toward the class it affects.” In other words, a heavy burden imposed on a single group ostensibly to satisfy poorly articulated objectives actually suggests a more nefarious motive: disgust or malice. Because it’s illiberal to hate members of a group simply for who they are, and to impose an unequal burden upon them, the law was void.
We now have a path forward. As with sexual orientation, people still disagree over whether the nature of the suffering experienced by transgender people is comparable to that faced by racial minorities, religious dissenters, or women. Nor have we recognized a fundamental right to satisfy basic bodily functions—at least not yet. Still, we shouldn’t leave transgender individuals totally unprotected. A challenger might insist that unbridled hostility animates these bathroom laws, which would instantly doom all such laws. Yet they will almost certainly encounter those who feel that it’s not hatred, but rather fear that motivates these policies. The question then becomes: Is that fear rational under the circumstances? In many situations, the answer will be no. Legislators or school officials have consistently offered two kinds of arguments when promoting “biological gender” matching bathroom laws: security and privacy. In many instances, they will not be able to point to any actual incidents where a transgender person has assaulted someone in a bathroom or otherwise poses a true threat. Occasionally, a proponent of such laws will claim that it’s not about transgender people at all, but rather an effort to stop a man from pretending to be a woman in order to assault a woman in the restroom. Again, this fear can be tested to see if this is something that really happens or is instead the product of a feverish mind. Anyway, it’s hard to imagine how a birth certificate–matching requirement would actually deter a person from committing assault in the john, if laws against battery already on the books aren’t going to do the trick. There are issues of practical enforcement of bathroom laws that also seem unreasonable. Since a law like this will fall more heavily on transgender individuals, they will presumably have to try to get their birth certificate changed to match their gender identity, but it can be extremely difficult to get this done. And if transgender people do obtain the proper documents, will they have to keep papers on them as they navigate public spaces? If so, this type of legal regime just ratchets up one’s sense of shame while raising the specter of a totalitarian gender-licensing program where our identity must be preapproved by the state before we can satisfy basic bodily needs. As for privacy, the question is whether forcing a transgender person to use a bathroom that doesn’t line up with the ideal of biological sex actually improves others’ right to bodily integrity. With minor accommodations, the physical layouts and availability of multiple facilities are usually enough to take care of these concerns. Mostly, then, it comes down to some vague discomfort from sharing a small space with a transgender person. Let’s be real: Would people really be more comfortable seeing transgender men in women’s rooms simply because their birth certificate read “female”? That’s what these kinds of policies mandate, all in the name of privacy and safety.
The rule of reason might end up as the most realistic substitute for egalitarianism.
The absence of a sound empirical basis for policies like that of North Carolina, plus any dehumanizing comments by those in charge, will underscore that most, if not all, bathroom laws rest on stereotypes of gender nonconforming individuals as “perverts” and “weirdos.” The reality is that most transgender persons are frightened and want to be let alone to use the toilet without being ridiculed. By focusing on the factual basis of perceived threats to public order, it’s possible to minimize unequal harms, and even outright scapegoating of sexual minorities for broader cultural changes, while sidestepping more intractable philosophical debates. Now what about a more difficult problem: President Trump’s unilateral decision to ban transgender troops? Here, the stakes are raised on all sides. As commander in chief, a president enjoys significant authority over matters concerning troop readiness. This includes the morale, safety, and privacy of soldiers. Moreover, no one has a constitutional right to serve in the military. To the contrary, everyone understands that whatever rights a soldier has are diminished while in uniform. At the same time, the president’s memorandum affects somewhere between 2,000 and 12,800 transgender soldiers, hardly a negligible number. Our notion of military service is actually more complicated as well, with many Americans who feel that military service is bound up with citizenship and civic equality. The integration of Black soldiers, and later openly gay and lesbian soldiers, invoked the republican ideal of the citizen-warrior. Still, the fact that women and other sexual minorities can serve their country with minor accommodations suggests that it might be possible for transgender persons to be capable soldiers.
Once again, the rule of reason might end up as the most realistic substitute for egalitarianism. The issue would turn entirely on whether being transgender is compatible with military service. President Trump has taken the view that the “disruptions” associated with transgender troops, including the costs of any necessary surgery, makes it not worth the candle. He believes that the presence of such individuals “erodes military readiness and unit cohesion.” But is this determination, which categorically excludes an entire social group from the armed forces, premised on a stereotype about masculinity as a necessary component of “military effectiveness and lethality” or grounded in a set of real concerns? Furthermore, this might be the kind of decision a president shouldn’t be allowed to make unilaterally. After all, policies about the composition of the armed forces also implicate Congress’ powers over the military. The Constitution gives Congress, rather than the president, explicit power to “raise” armies, “provide and maintain a Navy,” and to “make Rules for the Government and Regulation of the land and naval Forces.” Because the question of who can serve is a judgment about civic duty and equal opportunity, it should require full public engagement. Calling the ban unreasonable wouldn’t preclude political leaders from revisiting the issue, but it would raise the costs of doing so. A credible record would have to be assembled, either by military authorities or after hearings in Congress. Existing studies compiled by the previous administration indicated that disruptions would be minimal. At some point, this approach would require sifting through competing research to see if a total ban falls within the range of reasonable policy solutions. But the rule of reason might be tempting as a rationale to someone who doesn’t want to impose any permanent constraints on a president in this domain, but who also thinks it unconscionable to inflict gratuitous harm on loyal soldiers. Meanwhile, the broader national conversation about the place of transgender people in civic life can continue unabated. That debate is essential to securing more robust and lasting legal protections for sexual minorities. The Employment Non-Discrimination Act, which would clarify beyond a shadow of a doubt that the Civil Rights Act of 1964 protects against sexual orientation and gender identity discrimination, remains bottled up in Congress. In the meantime, legal and cultural changes are occurring from the ground up. Currently, 20 states plus the District of Columbia have laws that prohibit employment discrimination on the basis of sexual orientation or gender identity; another 400 or so cities and counties have added such protections. About 17 states and 200 cities and counties explicitly protect gender identity in public accommodations laws, and several more jurisdictions have interpreted existing laws that ban sex discrimination to include mistreatment on the basis of gender. The rule of reason doesn’t end this conversation, but shapes it in important ways. This approach pushes that conversation to be more fact-based and less ideologically polarizing. The attitude it fosters—an unswerving commitment to facts—can be exactly what is needed to cause a reset and help create conditions for compromise with justice as the object. Debates over national security or public order conducted at the highest levels of abstraction tend to overwhelm concerns about individual dignity, which can seem trivial by comparison. What’s the value of poor people or disabled individuals being able to live together or in an integrated society? When the state is trying to solve crimes or prevent the next attack, what is the value of being able to stay put? Empiricizing the state’s resort to legal force encourages us to home in on actual threats and probabilities rather than presumed tendencies based on broad social categories. Perhaps most important, it allows us to notice how discriminatory policies create an array of injuries, all of which can undermine the legal system in the long term. Enforcing the rule of reason can reduce disparities in the government’s treatment of citizens. Pro-equality gains can be achieved whether we are concerned with the unfair hardships of waging war or the costs of maintaining social order falling on some segments of society more harshly than others. Reprinted from Practical Equality by Robert Tsai. Copyright © 2019 by Robert L. Tsai. Used with permission of the publisher, W. W. Norton and Company, Inc. All rights reserved.