Though the National Defense Authorization Act will be passed with no amendments, Sen. Kirsten Gillibrand has also introduced the Military Justice Improvement Act, which would remove prosecution of sexual assault from the military chain of command, as a stand-alone bill, and she says she will continue to fight for its passage.
Sen. Kirsten Gillibrand’s Military Justice Improvement Act (MJIA), which would remove prosecution of sexual assault from the military chain of command, will not be included as an amendment to the 2014 defense spending bill.
Leadership of the House and Senate armed services committees struck a deal Monday to pass the National Defense Authorization Act (NDAA) through both chambers with no amendments. Because the House recesses at the end of this week, Congress ran out of time to vote on amendments and still pass the NDAA by the end of the year. The defense bill has passed every year for the last five decades, and failure to do so is widely considered to be unthinkable, especially in an election year.
A vote had been expected on the MJIA and other amendments before the Thanksgiving recess, but a Republican filibuster delayed that process.
Gillibrand (D-NY) has tirelessly advocated to pass the MJIA as an amendment to the NDAA, and was confident about reaching the 60 votes required to break a possible filibuster. Her supporters included unusual allies such as Sens. Rand Paul (R-KY) and Ted Cruz (R-TX).
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“Congress has chosen to sidestep the most important military justice reform to come across its desk in history, once again leaving sexual assault victims devastated and betrayed by inaction,” said Anu Bhagwati, Service Women’s Action Network (SWAN) executive director and former Marine Corps captain, in a statement.
But Gillibrand has also introduced the MJIA as a stand-alone bill and says she will continue to fight for its passage. Staff are confident that the bill will receive a vote.
SWAN policy director and former Marine Greg Jacob told Rewire that while it’s a “missed opportunity” for Congress not to vote on the MJIA now, the NDAA as it stands still provides important protections for sexual assault victims. Pre-trial hearings will be less adversarial and stressful for the victim, commanders will no longer be able to overturn sentences, and mandatory minimum sentences will be established for sexual assault.
But Jacob said his experience as a Marine officer taught him that the MJIA is necessary if the prosecution of military sexual assault cases is to be handled professionally.
“When I became an officer, suddenly I was supposed to be a legal expert and make decisions that affect the lives of my troops,” Jacob said. “It’s a serious decision to charge someone with a crime, and it should be handled by serious people who are trained to do what they do.”
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?
Twenty-two trans and gender-nonconforming people were killed in 2015, almost double the number who were killed in 2014. The vast majority of homicide victims were people of color, mostly trans women of color, according to national statistics.
James Dixon, 25, will be sentenced to 12 years in prison for beating to death a 21-year-old Black trans woman, Islan Nettles, in August 2013 in New York City.
The sentencing date comes two weeks after Dixon pleaded guilty to the top count of the New York State Supreme Court’s indictment against him—manslaughter in the first degree—following the revelation that his 2013 videotaped confession to prosecutors would be admitted as evidence into a jury trial.
Dixon would have faced a 17-year prison term if the jury had found him found guilty.
“With this conviction, James Dixon has finally been brought to justice for this brutal and lethal assault,” Manhattan District Attorney Cyrus R. Vance said in an April 4 statement. “Members of the transgender community are far too often the targets of violent crime. I hope that this conviction provides some comfort to Ms. Nettles’ family and friends.”
Advocates and organizers, however, say the opposite is true.
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“This is not a win for the trans community,” Lourdes Hunter, co-founder and national director of the TransWomen of Color Collective (TWOCC), told Rewire in a phone interview. “James Dixon going to jail will not stop trans murders, it will not bring Islan Nettles back, it will not bring peace to Delores Nettles [Islan’s mother], who for many years sat in anguish as the murderer of her child roamed the streets due to the negligence of the New York Police Department and the New York District Attorney.”
Nettles was attacked just after midnight on August 17, 2013, when she and her two friends encountered a group of about seven men, including Dixon, in West Harlem, according to reports. Dixon, per those reports, stated in his confession that he had flirted with Nettles until his friends pointed out that she was transgender.
He says he then flew into “a blind fury,” first punching Nettles in the face and then striking her a second time while she lay on the sidewalk.
Accounts of the murder vary, with eyewitnesses and prosecutors claiming Dixon punched her several times and even slammed her head against the concrete pavement. Those allegations are confirmed by the New York District Attorney’s office, which concluded that Dixon “repeatedly struck the victim with a closed fist, causing serious brain injury, before fleeing the scene.”
Nettles’ mother, Delores, claims the assault rendered Nettles unrecognizable. At a protest in 2014 she blasted New York City officials for failing to send a detective to the hospital where Nettles lay in a coma; Delores stated, “half of my child’s brain is hanging out of her head,” according to the Washington Post.
Nettles was declared brain dead on August 20, and taken off mechanical support a few days later. Her death prompted large and sustained protests in New York City, including vigils and rallies that drew hundreds of people.
“Nettles was killed at an interesting time: The start of what we’re now seeing to be a more visible national trend in awareness and conversations about trans murders,” Shelby Chestnut, co-director of community organizing and public advocacy with the New York City-based Anti-Violence Project (AVP), told Rewire in a phone interview.
Citing data collected by the AVP, which is the only national organization to track lethal violence against the trans community, Chestnut told Rewire that 22 trans and gender-nonconforming people were killed in 2015, almost double the number who were killed in 2014. The vast majority of homicide victims, she said, were people of color, mostly trans women of color.
Keyonna Blakeney, a 22-year-old Black trans woman, was murdered Saturday in Montgomery County, Maryland. An AVP spokesperson told Rewire that Blakeney is the ninth trans woman to be killed in 2016.
Chestnut told Rewire that Nettles’ death had a deep impact on the community because “the rest of the world sees New York City as a safe haven for LGBT people, but in fact its no different from anywhere else—trans people are still subjected to violence, and in some cases death, simply because of who they are.”
Chestnut said Dixon’s confession invokes what’s called the “trans panic defense”—a legal tactic used to convince judges or juries that a victim’s sexual identity both explains and excuses a perpetrators’ “loss of self-control” and resulting assault. This type of defense has been outlawed in California, and the American Bar Association has called on other states to ban it as well.
“Sadly the media has been focusing on this so-called panic defense, which adds to a really terrible, transphobic narrative that there is something fundamentally wrong with being trans when in fact there is nothing wrong with it,” Chestnut added.
Both Chestnut and TWOCC’s Hunter agree that locking Dixon up will not stem the tide of violence against the trans community, since mass incarceration has proved to be an outright failure in terms of preventing crime.
“Sending someone to prison is not ‘justice,'” Chestnut said. “We need to address the bigger, systemic issue, which is: Why is violence like this allowed to permeate our society? And how are we investing in modes of prevention and education for everyone, so that a young, trans women of color can walk down the street and not be killed simply for who she is?”
“In the United States the life expectancy of a trans woman of color is less than 35 years,” Hunter added. “We can no longer ignore that state-sanctioned violence, including [that] the denial and lack of access to jobs, housing, and health care is inextricably linked to the physical violence we face every day. If you don’t have a job and can’t pay your rent, you may be forced to engage in activities for survival that further endanger your life.”
Ten percent of 6,400 transgender adults interviewed for a national survey had engaged in survival sex work between 2008 and 2009, a number that rose to 33.2 percent among trans Latino/a respondents and 39.9 percent among Black respondents, as Rewire has reported.
Trans communities experience disproportionate rates of homeless and incarceration, with 47 percent of Black transgender people having experienced incarceration.
Nettles had been forging a pathway for herself out of this cycle of poverty and violence when she was killed. Hunter said Nettles had just moved into her first apartment, was attending school, holding a steady job, and was an active member of the community, even volunteering at a local homeless shelter—all of which may have contributed to the wave of protests that followed her death.
“There are all these ‘respectability politics’ involved in narratives around trans lives,” Hunter told Rewire. “For instance, Nettles was not engaging in street-based sex work or trying to ‘trick’ people about her identity; when Dixon questioned her, she proudly affirmed that she was trans. Basically she did not fit easily into the stereotyped narrative that the media likes to present about trans women.”
Hunter said a broad coalition of local advocates supported justice for Nettles and her family members. While these advocacy efforts almost certainly played a role in pushing the District Attorney’s office toward a resolution of the case, Hunter says it’s important to fight back against the notion of “respectability.”
“We need to stand up and fight for all trans lives, not just the ones that are deemed ‘respectable,’ because no trans person deserves to die,” Hunter said. “Given the historical lack of [effort] to bring closure to these heinous crimes, the only appropriate response for D.A. Vance is to launch a concerted effort to re-open all cold cases of trans murders in New York City.”
“This is why we say ‘Not One More,’” Hunter said, referring to TWOCC’s video campaign. “At the core of this campaign is the message that we cannot be silent, we cannot wait until a trans woman of color is murdered to celebrate who we are and raise awareness and visibility around our lives, and around the women whose lives were taken away without them being able to experience the happiness and joy that is entitled to all of us as humans.”