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Transgender Americans are still waiting for legal equality

A constitutional rule prohibiting transgender discrimination remains elusive.

A constitutional rule prohibiting transgender discrimination remains elusive. Credit: Getty Images/iStockphoto/arvitalya

In June, you'll recall, the U.S. Supreme Court held that the Title VII prohibition on workplace discrimination "because of sex" covers transgender people. You might think that, as a result, this form of discrimination would now be more broadly illegal for the government or for people in many scenarios outside the office.

It turns out things aren't that simple. Since the landmark ruling in Bostock v. Clayton County, President Donald Trump's administration has enacted rules that allow discrimination against transgender people by hospitals and homeless shelters. And its ban on trans troops remains in place.

All this is possible because the Supreme Court's opinion interpreted just one particular statute regarding the workplace. It wasn't based on the U.S. Constitution. So there isn't yet a recognized constitutional ban on government discrimination against transgender people.

Statutes that are similar or identical to Title VII ought to be interpreted to prohibit transgender discrimination. But that leaves room to debate what happens if a statute is different or where no statute applies.

In other words, we're in one of those weird periods of time where some discrimination against a particular group has been rendered unlawful, while other forms of discrimination are in a confusing twilight zone.

There was a similar situation between June 2013, when the Supreme Court struck down the federal Defense of Marriage Act in U.S. v. Windsor, and June 2015, when the court established a constitutional right to same-sex marriage in Obergefell v. Hodges. In the interim, it was hard for gay couples to know their legal status when they were married in some states but arguably not married in others.

The Department of Health and Human Services rule stripping Obama-era protections for transgender hospital patients, which became final in June and was written before the Bostock ruling, is the most legally vulnerable of the Trump administration efforts.

The rule purports to interpret part of the Affordable Care Act. That statute prohibits any recipient of federal health-care aid from discriminating on the basis of categories prohibited by other federal discrimination laws including Title VI of the Civil Rights Act of 1964 and Title IX, the education provision.

Although the ACA provision doesn't specifically cross-reference Title VII, the language of the other two civil-rights laws tracks: They all prohibit discrimination because of or on the basis of sex. Logically speaking, therefore, the ACA should be understood after the Bostock case to prohibit discrimination against transgender people.

The attorneys general of 22 states and the District of Columbia have filed a lawsuit arguing that the HHS rule is therefore unlawful. The lawsuit deserves to win, and probably will. The only reason it may take a little while is that the ACA doesn't specifically cross-reference Title VII.

In contrast, the Department of Housing and Urban Development rule that rolls back Obama-era protections for transgender people in homeless shelters poses much trickier legal problems. True, the Fair Housing Act prohibits discrimination on the basis of sex. As a result, in general, the law should now be interpreted in the light of the Bostock decision to prohibit housing discrimination against transgender people.

The trouble is that, as President Barack Obama's administration itself acknowledged, the Fair Housing Act didn't extend its sex-discrimination ban to homeless shelters, which are allowed to be single-sex. Emergency shelters weren't defined as "dwellings" covered by the act.

Thus, the Trump administration rule presented itself simply as reversing the Obama administration's rule that shelters had to admit transgender people who identify with the gender to which the shelter is devoted.

No doubt some lawsuit will be eventually be brought against the Trump rule, probably challenging the justification that the Trump administration used for this reversal. But the lawsuit won't easily be able to point to statutory language that parallels the Title VII language. It's not impossible that the Trump rule could survive, at least unless and until it was reversed by another administration.

That leaves the Trump administration's ban on military service by transgender people. Title VII anti-discrimination law doesn't apply to the military. And the courts have traditionally afforded the Defense Department significant deference in defining the employment decisions they make to define their mission.

Meanwhile, a constitutional rule prohibiting transgender discrimination remains elusive. Gorsuch's opinion was based on the explicit language of the Title VII law. There is no such language in the Constitution. There would be if the Equal Rights Amendment had been enacted; then the question would have been whether Gorsuch would apply the same principles of interpretation to the Constitution as he did to the statute.

History suggests that once discriminatory barriers begin to fall, legal equality (which is very different from real-world equality) usually follows. Eventually, this historical period of partially illegal and partially legal transgender termination will look like an anomaly or interregnum. But it could take some time — unless Joe Biden is elected president in November and takes action.

Feldman is a Bloomberg Opinion columnist and host of the podcast "Deep Background." He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include "The Three Lives of James Madison: Genius, Partisan, President."

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