Like many people with a developmentally disabled family member I welcome the introduction of the needs of the developmentally disabled into national policy debates. But we need policies and funding, not promises.
At the 2008 Republican National Convention Governor Sarah
Palin, the mother of a child with Down syndrome, spoke directly to
families with special needs children. "To
the families of special-needs children all across this country, I have a
message," she began. "For years, you sought to make America a more welcoming place for
your sons and daughters. I pledge to you
that if we are elected, you will have a friend and advocate in the White House."
Palin again addressed the issue during
the Vice Presidential debate, saying that working with families of children
with special needs would be one of her duties as Vice President.
Like many people with a developmentally disabled family
member I welcome the introduction of the needs of the developmentally disabled
into national policy debates. Special
needs children, including my autistic older brother, grow up to be adults with
special needs who depend on government programs for support. When funding for those programs is
insufficient or eliminated, too often services are not delivered as a result
and families like mine struggle to fill the gap. In light of the recent economic crisis, both
presidential campaigns have been asked what initiatives or programs they would
have to set aside due to lack of funding.
Both have avoided giving specific answers, although McCain suggested he
would freeze funding for all programs except military spending, support for veterans
and entitlements. But those of us with
developmentally disabled loved ones know all too well the specific impact
funding cuts have on services. Many
programs serving Americans with special needs were under-funded before the
recent economic crisis and are now once again at risk of more cuts or even
Although Palin has taken ownership of the disability issue,
Senator McCain has the Republican ticket’s record of action on the issue. McCain was an original co-sponsor of the
landmark anti-discrimination law, the Americans
with Disabilities Act (ADA),
and he has supported legislation to improve voting accessibility to people with
disabilities. McCain and Obama both supported the ADA Amendment Act, which
clarifies the protections of the ADA. The Obama and McCain campaigns have done
outreach to the disability community and both campaigns have staffers working
to win the disability vote. The campaigns have also pledged to appoint a White
House staffer to focus on disability issues should they win the presidency. But
the McCain-Palin ticket has yet to offer a specific agenda to address the needs
of Americans with disabilities. In
contrast, the Obama-Biden ticket has presented Barack Obama and Joe Biden’s
Plan to Empower Americans with Disabilities.
When I became my 38 year-old autistic brother’s co-guardian
I was immediately launched into the world of funding battles in our home state of
Missouri. My brother is profoundly
autistic, dependent on government programs to fund everything from his
residential program and supported employment to healthcare and food. But changes in federal policies between 2002
and 2005 have resulted in a severe financial crisis in Missouri that has in turn trickled down to
impact my brother’s life in the form of funding cuts. Tax cuts that have
reduced state revenue due to the link between federal and state tax systems,
the federal ban on state taxation of purchases made over the Internet and
unfunded mandates like No Child Left Behind have combined to cost Missouri an estimated $1
billion a year. Missouri’s response to the budget challenges
of 2002-2005 was to cut deep. Social
services took the largest cut in the state budget (40% of the total core budget
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Over this time period, we saw an $11 million reduction in
funding for services for people with mental retardation and developmental
disabilities like respite care, day rehabilitation, and therapy. As of July 2004, the state had a waiting list
of more than 4,000 individuals for residential services and non-residential
services. Those burdens have shifted to
families and many disabled children and adults have been forced to go without
On the federal front, the Individuals
with Disabilities Education Act (IDEA), the federal law passed in 1975 that
mandates equal educational opportunity for children with disabilities, has been
under-funded since passage. When the law
was enacted, the federal government promised it would fund 40 percent of the
additional costs that the law requires states to incur. Federal funding over fiscal years 2002-2005
fell nearly $858 million short of meeting this goal.
education plan fails to mention specific funding for special education and
the McCain campaign has not proposed any increase in overall federal education
funding – and that includes funding for IDEA.
In comparison, Senator Obama’s disability platform plan calls for IDEA
to be fully funded.
Choice Act presents another point of distinction between the
campaigns. Proposed by Senator Tom
Harkin and co-sponsored by Senator Obama, the bill would make government funds
for institutional care available for home-based services so that more disabled
people could remain in their homes. Missouri’s
"family stipend" program, which helped some 800 families care for
their disabled children at home rather than institutionalizing them, was
completely eliminated in fiscal year 2004. McCain opposes the bill because of
concerns about cost.
While the debate over how to address the economic crisis
rages on and the presidential campaign closes in on Election Day, families with
disabled members are looking for more than a campaign promise without policy
and a funding pledge to back it up. Many
of us know the impact of spending cuts and insufficient funding all too
well. The economic crisis will further
hinder the ability of states to fund services, making full funding for IDEA and
passage of the Community Choice ACT necessary priorities for the next
At the beginning of this month, around 1,500 children and 1,000 adults living in poverty in Arizona lost cash assistance and now are permanently barred from the state’s welfare program.
Arizona is the first state in the country to end welfare benefits after one year, meaning that a family—typically a parent or a relative with at least one dependent child—who has already used 12 months of cash assistance will be cut off permanently.
The approximately 2,500 individuals who lost benefits July 1 represent roughly 10 percent of the children and one-quarter of the adults who receive Arizona’s funds from a federal block-grant program known as Temporary Assistance to Needy Families (TANF). They may, however, still qualify for benefits like Supplemental Nutrition Assistance, Medicaid, and other assistance.
Arizona had previously provided two years of cash assistance, but Arizona lawmakers and the state’s Republican governor recently agreed to cut the time limit in half to help plug a projected $534 million budget hole in 2016 and shift themoney to state child welfare programs. The state expects to save $3.9 million annually with the 12-month limit, according to a spokesperson from the Arizona Department of Economic Security, which runs TANF.
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Critics have called it “an aggressive and intentional effort to undermine support for vulnerable families,” as Cynthia Zwick, executive director for the Arizona Community Action Association, put it for the Arizona Republic.
The average Arizona family in the program received $201 in May 2016, according to a state report, an amount that is less than half of the nationwide average monthly benefit of $429. To qualify in Arizona, a family of four generally cannot earn more than $2,584 a month, although that varies and is based on multiple factors.
A federal block-grant program, TANF was enacted under former President BillClinton in 1996 with the aim of “end[ing] welfare as we know it.” TANF allows up tofive years of benefits, but gives states wide latitude with those benefits, as long as their TANF spending meets at least one of four official goals: providing cash aid to needy families; promoting job training, work, and marriage; reducing out-of-wedlock pregnancies; and increasing the number of two-parent families.
In the 20 years since the program’s enactment, what’s happened is a marked and ongoing plunge in cash assistance to families in poverty, as states, like Arizona, spent TANF money elsewhere.
Roughly 55 percent of impoverished Arizona families received TANF benefits in 1994-95, a number that plunged to 9 percent in 2013, as the Morrison Institute noted in its 2015 report. Arizona’s latest reduction is the fourth since 2009, as the report noted.
Anticipating the cuts, representatives from the state DES said recently in a statement that state contractors have found jobs for more than 1,500 individuals who were in danger of losing benefits because of the new one-year cap.
Arizona outsources its job training and placement to two private companies, MAXIMUS and Arbor/ResCare Workforce Services. The DES also reported that an additional 245 individuals have gained work experience, and more than 450 have participated in community service activities with employers.
A recent lawsuit filed by two transgender North Carolinians may offer an opportunity for the U.S. Supreme Court to expand the reach of the 14th Amendment’s Equal Protection Clause to include transgender people. In the lawsuit, Carcaño v. McCrory, Joaquín Carcañoand Payton McGarryhavechallenged the constitutionality of the bathroom provisions of HB 2, North Carolina’s newly passed law that, among other things, prohibits transgender people from using public restroom facilities that align with their gender identity.
The law singles out transgender people and denies them a benefit that cisgender people enjoy—the ability to use public restrooms consistent with their gender identity—and so it seems to be a fairly straightforward violation of the Equal Protection Clause, which prohibits singling out a specific group of people for mistreatment under the law. That said, the Court has not yet weighed in as to where gender identity discrimination fits into the Equal Protection Clause. The speed with which state legislatures are passing bathroom discrimination bills, however, suggests that it won’t be long before the Court is asked to do so. Without constitutional protection, more of these policies targeting transgender people will continue to be implemented throughout the country.
Despite a long history of unjust discrimination against transgender people, lower courts have time and again refused to deem them a protected class because, in their estimation, transgender people—or “transsexuals,” as much of the case law describes them—are not a “discrete and insular minority.”
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Since the Court first articulated the concept in the 1930s,it has developed hallmark characteristics to determine which “discrete and insular minorities”—otherwise known as “suspect classes”—require special assistance from courts when it comes to laws that discriminate against them, and how much assistance courts should render. These are groups that have historically been subjected to discrimination, groups that are a small percentage of the population and therefore in danger of tyranny by the majority, and groups with “immutable characteristics,” a term coined by the Court to describe things like race and gender.
Black people, for example, are a suspect class according to Supreme Court jurisprudence. Laws that target them for discrimination will rarely pass constitutional muster because the strict scrutiny standard, which requires that the law be narrowly tailored to promote a “compelling government interest,” is a difficult hurdle to surpass. In other words, if a law singles out Black people for different treatment, the government must have a damn good reason why, and the Court is going to start from the presumption that the government’s reason still isn’t good enough.
Women, on the other hand, are a “quasi-suspect class”: The Court has determined that laws targeting women for unequal treatment may pass constitutional muster, if the laws are substantially related to an “important government interest.”
But when it comes to transgender people, most courts have refused to call them a suspect or quasi-suspect class.
Determining that trans people should be protected by the courts does not require an academic discussion about the immutability of gender identity, however. All it requires is common sense.
The suicide attempt rate for transgender or gender-nonconforming people in the United States is 41 percent, compared to 4.6 percent among the overall population. The unemployment rate in the trans community is double what it is for the country as a whole. Violence against trans people, trans women of color in particular, is staggering, as are poverty levels. Transgender people aren’t adequately represented in government bodies, and due in partto their small numbers, they lack the political power to prevent laws that discriminate against them from being passed.
Just look at the way HB 2 was rushed through the North Carolina legislature: On February 22, the Charlotte City Council approved an ordinance that would amend existing public accommodations policies to include protection from discrimination based on “gender identity,” “gender expression,” and “sexual orientation.” A month later, after a quasi-emergency legislative session, Gov. Pat McCrory (R) was already signing a law stripping away those protections and preventing any other cities from enacting similar ordinances at a cost of approximately $42,000 to North Carolina taxpayers. The law is so apparently unconstitutional that Roy Cooper, North Carolina’s attorney general and Democratic gubernatorial candidate, refuses to defend it, calling it a “national embarrassment.”
This rush to strip LGBTQ people of rights is a case study in the rule of a tyrannical majority over a “discrete and insular minority.” Indeed, it is difficult to think of a group of people more deserving of the “suspect class” label than transgender people.
But for reasons that no court has been able to articulate satisfactorily, laws that discriminate against transgender people—some of the most vulnerable members of our society—have generally not warranted a stricter examination than rational basis review, which rarely results in legislation being struck down.
In 1977, for example, in a case called Holloway v. Arthur Andersen & Co., the Ninth Circuit Court of Appeals reasoned that “transsexuality” did not meet the indicia of a suspect classification because transsexuals are not a “discrete and insular minority” and because the plaintiff in that case did not establish that “transsexuality is an immutable characteristic determined solely by the accident of birth, like race, or national origin.”
Occasionally, lower courts have lumped gender identity in with biological sex, although trans and cis women can face different kinds of oppression.In a 2011 case, Glenn v. Brumby, the 11th Circuit Court of Appeals found that “discriminating against someone on the basis of his or her gender non-conformity constitutes sex-based discrimination under the Equal Protection Clause.” The terms “protected class,” “suspect class,” or “quasi-suspect class” are not found anywhere in the opinion.
Because of all that uncertainty, transgender people have often turned to suing under claims of employment discrimination in violation of Title VII, or education-based discrimination in violation of Title IX. And they’ve found success, even as the courts sidestep the protected class issue.
This is because a 1989 Supreme Court case, Price Waterhouse v. Hopkins, recognized a Title VII cause of action for discrimination based on an employee’s failure to conform to stereotypical gender norms. (Title VII and Title IX cases are often analyzed using the same set of legal principles.)
In 2004, in a case called Smith v. City of Salem, the Sixth Circuit Court of Appeals applied the Price Waterhouse theory to “transsexuals”: “[d]iscrimination against a plaintiff who is a transsexual—and therefore fails to act and/or identify with his or her gender—is no different from the discrimination directed against Ann Hopkins in Price Waterhouse, who in sex-stereotypical terms, did not act like a woman.”
However, this tactic is not always successful. In Johnston v. University of Pittsburgh, a transgender man was repeatedly sanctioned for using the men’s bathroom and locker room after being told that he was no longer permitted to use those facilities. He sued the university claiming discrimination under Title IX. The district court rejected his claim in March of last year, stating that the university’s policy refusing a transgender man access to the men’s locker room was based on the need to ensure the privacy of its students to disrobe and shower outside of the presence of members of the opposite sex. The court went on to note “[t]his justification has been repeatedly upheld by courts.”
As Harper Jean Tobin of the National Center for Transgender Equality and Professor Jennifer L. Levi of Western New England University School of Law pointed out in a 2013 law review article, however, “No court has ever held that there is any legal right to privacy that would be violated simply by permitting a transgender person to access a gender-specific facility that corresponds to his or her gender identity.”
For the past decade, there has been a movement toward recognizing transgender people as a protected class without any court having to actually say the words. This string of successes is partially due to the Obama administration’s federal agencies, which have implemented forward-thinking policies that apply to Title VII and Title IX claims. Without explicitconstitutional protection, trans rights are relegated to the whims of the legislative and executive branches. It’s as if courts recognize that transgender people are getting the short end of the equal protection stick, but have yet to follow that recognition to the next logical step.
In November of last year, a judge in New York became the first federal judge to rule that transgender people are a protected class. In Adkins v. City of New York, plaintiff Justin Adkins alleged that he had been treated differently than other Occupy Wall Street protesters who were arrested during a protest on the Brooklyn Bridge in 2011 because he is transgender. Adkins filed suit alleging equal protection violations.
The City of New York moved to dismiss the lawsuit: The City argued that transgender people are not a protected class under a 2009 case, Lopez v. City of New York, which held exactly that. Adkins’ equal protection claims, therefore, should be subject only to rational basis review, making it more likely that the lawsuit would be dismissed.
Adkins countered that the appropriate standard of review is intermediate scrutiny because discrimination against transgender people is a form of gender discrimination or, alternatively, because transgender people are a quasi-suspect class and his claims are subject to intermediate review on that basis.
The court sided with Adkins, but not on the basis—as with previous court rulings—that transgender discrimination is a form of gender discrimination. Instead, the court ruled that transgender people are a quasi-suspect class in light of the Second Circuit Court of Appeals’ decision in Windsor v. UnitedStates, the precursor to the national case eventually leading to the downfall of the Defense of Marriage Act (DOMA). In Windsor, the Second Circuit ruled that “homosexual people” were a quasi-suspect class on the basis of four factors: (1) gay people have suffered a history of persecution; (2) sexual orientation has no relation to ability to contribute to society; (3) gay people are a discernible group; and (4) gay people remain politically weakened.
In November of last year, the Department of Education issued a landmark decision for transgender rights in education, holding that an Illinois school district violated anti-discrimination laws when it did not allow a transgender girl student who participated on a girls’ sports team to change and shower in the girls’ locker room, as reported by my colleague Jessica Mason Pieklo.
And just last week, the Fourth Circuit Court of Appeals held that the lawsuit of a transgender high school student named Gavin Grimm challenging his school’s bathroom policy should move forward. The court did so after the Department of Education, under the Obama administration, released guidelines warning that school rules forcing transgender students into segregated bathrooms or bathrooms inconsistent with their gender identity would be considered a violation of Title IX. Because the federal appeals court depended on the agency guidance to make that ruling, Gavin Grimm’s lawsuit is an important step in firmly establishing statutory legal protections for transgender people while waiting for the Supreme Court to determine where they stand under the Equal Protection Clause.
Plenty of school districts across the country have followed the administration’s lead and created guidelines to ensure that transgender students can safely and peacefully use their preferred bathrooms. The federal government has adopted a policy that extends the Department of Education guidance and permits federal workers to access workplace facilities that align with their gender identity as a matter of “dignity and respect,” and to “provide a workplace that is free from discrimination whether that discrimination is based on race, color, religion, sex (including gender identity or pregnancy), national origin, disability, political affiliation, marital status, membership in an employee organization, age, sexual orientation, or other non-merit factors.”
Which brings us back to Carcaño and McGarry’s lawsuit challenging the bathroom provisions in North Carolina’s HB 2. When Windsor made its way to the Supreme Court, the Court, in an opinion authored by Anthony Kennedy, invalidated DOMA without saying whether gay people are a suspect class, and ignored the Second Circuit’s ruling that theyare a quasi-suspect class. Kennedy, as he is wont to do, framed the issue as one of “human dignity.”
It is no surprise, then, that the term “dignity” is peppered throughout Joaquin Carcaño and Payton McGarry’s complaint challenging HB 2 on equal protection grounds. Carcaño and McGarry are asking a district court in North Carolina to declare them members of a protected class entitled to heightened scrutiny. If the district court refuses, they will presumably ask the Fourth Circuit Court of Appeals. If that court also refuses, it will be up to the Supreme Court to explain how discrimination against transgender people as transgender people is no big deal and warrants only rational basis review, but discrimination against transgender people as a form of gender discrimination warrants heightened scrutiny.
In this case, there is another option for protecting LGBTQ people’s rights, though not one that may be useful for future assaults. If the Supreme Court continues to punt on whether LGBTQ people are a protected class or finds that permitting transgender people to use the appropriate restroom and locker room facilities somehow implicates a heretofore undiscovered legal right to privacy, then it is in this context that Anthony Kennedy’s dignity jurisprudence, which was also the linchpin of his majority opinion in Obergefell v. Hodges, will do quite nicely: Where is the dignity in forcing transgender people to use a bathroom that doesn’t align with their gender identity?