The repeal of Houston’s equal rights ordinance last week certainly felt like a step backwards for equality advocates. In May 2014, the Houston City Council passed the law, known as HERO, to ban discrimination based on gender identity, sexual orientation, and 13 additional classes of people. The ordinance exempted religious institutions, but businesses that serve the public, private employers, housing, and city contractors all faced up to $5,000 in fines for violations. In deep-red Texas, HERO’s passage signified an important purpling of the state.
Almost as soon as the ordinance passed, conservatives started a massive opposition effort. In July, after a protracted legal battle, the Texas Supreme Court ordered the Houston City Council to either repeal HERO outright or put it on the ballot for residents to decide on. The council voted to do the latter. Then, conservatives who opposed HERO narrowed their tactics. Unprepared to debate HERO on its own merits, they launched a campaign that relied on transphobia to warn of predatory men dressing as women to assault victims. Calling HERO “the bathroom ordinance,” outside advocacy organizations ran TV ads showing a creepy old man following a young girl into a bathroom stall; just outside polling places, opponents held signs reading “NO Men in Women’s Bathrooms.”
Really. It was ugly, vicious politics at its worst. And it worked. HERO went down.
But what if I told you that despite last Tuesday’s vote, the move toward LGBTQ equality has not taken a significant step back, not even in Houston? Sounds ludicrous, I know, but stay with me. Thanks in large part to the solid foundation of support for LGBTQ rights, transgender rights in particular, within the federal agencies of the Obama administration, even a defeat like HERO in Houston is one the push for equality can now withstand.
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Texas is one of 28 states without a statewide law prohibiting discrimination based on sexual orientation and gender identity. Put another way, in more than half the states in this country, it is perfectly legal to discriminate on the basis of gender identity and sexual orientation. This is not a Texas problem. This is an everywhere problem. And that nationwide patchwork of legal protections—or vulnerabilities, depending on where you happen to live—creates federal constitutional problems. How can it be that a transgender person in California has more legal protections than a transgender person in Texas? For that matter, how is it possible that a transgender person in Austin, Texas, can have more legal protections than a transgender person in Houston?
The answer is, they don’t. Or rather, they shouldn’t. That’s the whole “dignity” part of Justice Anthony Kennedy’s majority opinion in Obergerfell v. Hodges, last summer’s Supreme Court decision that struck as unconstitutional statewide bans on same-sex marriage. As Kennedy’s opinion explains, one way in which the government respects our fundamental dignity as citizens is by equally applying and enforcing the law regardless of gender identity and sexual orientation. That should guarantee that our rights and protections travel with us, from city to city, state to state, because they are inherent to us.
And as was the case with marriage equality, as states and municipalities swing back and forth on establishing protections for transgender individuals, progress on this front is being made on a federal agency level.
Agency opinions are binding only on other federal agencies, so they do have a limited reach. That said, they are vital instigators of policy change: Agency opinions immediately bind their employees, but more importantly, they help drive change by offering guidance to the federal courts in how they should rule on issues the agencies have already weighed in on.
The Obama administration’s national push for transgender rights started in 2012 when the Equal Employment Opportunity Commission (EEOC), the federal agency charged with enforcing workplace anti-discrimination laws, issued the landmark decision Macy v. Holder, which held that employment discrimination based on transgender status was a form of unlawful sex discrimination under Title VII.
Then came the nomination and ultimate confirmation in 2013 of Chai Feldblum to head the EEOC. Feldblum is openly lesbian and has been at the forefront of the fight for LGBTQ and disability equality for decades. She played a leading role in the drafting of the Americans With Disabilities Act and is a leading expert on the Employment Nondiscrimination Act (ENDA), which conservatives have successfully stalled in Congress. Notably, her scholarly work explored the issues of gay rights, religion, and equality—a critical area of expertise as conservatives try to weaponize the First Amendment to allow discrimination against LGBTQ people in the name of religious freedom.
Feldblum has long argued that existing civil rights laws, most notably Title VII, protect against discrimination on the basis of gender stereotypes and gender norms. In September 2014, her agency filed the first-of-its-kind federal civil rights lawsuit accusing two companies of discriminating against transgender employees in violation of Title VII, putting into practice what had been established as law in Macy. Meanwhile, that December, the Department of Justice followed along and issued a memorandum recognizing transgender people as protected under Title VII, bringing that agency in line with the precedent set by the EEOC. Then in a separate complaint in April 2015, the EEOC held, for the first time ever, that it is a civil rights violation to deny transgender workers the use of a restroom consistent with their gender identities.
That’s a lightning round of evolution by government agency standards.
The Obama administration’s actions to protect transgender people extend beyond the workplace. Earlier this month, the Department of Education issued a landmark ruling that an Illinois school district violated anti-discrimination laws when it did not allow a transgender girl student who participates on a girls’ sports team to change and shower in the girls’ locker room without restrictions. The Obama administration also in October filed a legal brief to the U.S. Court of Appeals in the Fourth Circuit supporting transgender student Gavin Grimm who has sued his school district in Virginia, alleging that the district’s policy of preventing him from using a bathroom consistent with his gender identity violates Title IX of the Civil Rights Act.
“Prohibiting a transgender male student from using boys’ restrooms, when other non-transgender male students face no such restriction, deprives him not only of equal educational opportunity but also ‘of equal status, respect, and dignity,’” lawyers from the Departments of Justice and Education wrote in the brief.
It is no mistake the Obama administration uses the word “dignity” here, just like Justice Kennedy, whose “dignity doctrine” helped pave the way for marriage equality nationwide. This is what playing the long game looks like.
The fact that the Obama administration filed a brief making the argument that current civil rights laws protect transgender students from the kind of fear-mongering that defeated HERO is extremely significant, especially in light of all the work its agencies have done in this area to start. A federal court ruling, especially a federal appeals court ruling, is generally binding on public and private entities in all the states within that court’s jurisdiction. In the Grimm case, a pro-transgender rights ruling would, practically speaking, make it illegal to prevent a transgender boy from using the men’s bathroom in Maryland, Virginia, West Virginia, North Carolina, and South Carolina, states all falling within the jurisdiction of the Fourth Circuit.
All of this is going on in the background of federal inaction on ENDA and efforts by conservatives to pass more so-called religious freedom bills. And in the wake of HERO’s defeat, it’s safe to assume conservatives will apply the same kind of prejudice and alarmism to try and block other state and local efforts to unequivocally embrace LGBTQ equality. Meanwhile, violence against transgender people continues unabated. So while agency action is most definitely good news and a sign of progress beyond the defeat of one ordinance like HERO, it is doing little to protect actual transgender lives now and is likely cold comfort for the LGBTQ community.
But as states and municipalities struggle with this next wave of civil rights recognition, such action has become the eye in that hurricane of social change. Given the impending changes in the White House, especially the possibility of a Republican administration taking over, the kind of foundation the administration is laying now through its agencies and briefs is vital in the march toward justice.