NBC News, USA
NBC OUTNov 13 2016, 2:44 pm ET
Could Transgender Bathroom Case Impact Justice Kennedy's Legacy?
by Emma Margolin
Justice Anthony Kennedy has spent the last 20 years carefully
cultivating a reputation as one of the strongest gay rights champions to
ever sit on the U.S. Supreme Court. But the justices' surprise move to
take up a case involving transgender rights last month could cast a spotlight on the longtime swing voter and have implications for his broader LGBT rights legacy.
"Kennedy's a conservative of a very different generation than people advocating for the 'T' in LGBT, and I think he's going to be a difficult vote to get," said David Cohen, a law professor at Drexel University.
In the last week of October, the high court broke with its typical go-slow approach on controversial issues and said it would hear a case involving a transgender student's right to use the bathroom matching his male gender identity at school.
The student, 17-year-old Gavin Grimm, and his attorneys at the American
Civil Liberties Union argue that he has a right to use the bathroom
corresponding to his gender identity under a federal law known as Title
IX, which bans sex discrimination by schools receiving federal funds.
The Obama administration, whose Justice and Education Departments
filed friend of the court briefs on behalf of Grimm, agrees.
But the Virginia school board on the other side of the case counters that Title IX applies only to the kind of sex discrimination that's based on the physical characteristics assigned at birth, not to discrimination based on gender identity.
The case stands to have major implications for transgender students across the country as similar suits wind their way through the federal judiciary. It could also affect transgender people more generally who seek protection under other statutory prohibitions on sex discrimination — such as Title VII of the 1964 Civil Rights Act, which governs employment.
One case that's likely to be impacted by the Virginia suit, for example, is the Justice Department's
challenge against a North Carolina law
banning transgender people from using government building bathrooms in
accordance with their gender identities. That law, the Justice
Department argues, violates both Title VII and Title IX, along with the
Violence Against Women Act, and therefore hinges considerably on how
broadly the Supreme Court chooses to define "sex discrimination" in the
Virginia suit.
But legal experts say that for Kennedy, the case could complicate his celebrated status as a
gay rights icon — one established by authoring every major decision advancing gay rights since 1996.
"I think history will look poorly on this if Kennedy doesn't vote in favor of Grimm," said Drexel University's Cohen, adding that he believed the justice would likely not be convinced by Grimm's argument.
The Supreme Court will hear the Virginia case sometime in 2017 — just
two years after Kennedy handed down the landmark ruling in
Obergefell v. Hodges that effectively
legalized marriage equality across the country.
It was the Reagan appointee's fourth opinion affirming the rights of gays and lesbians since 1996, when in the case of Romer v. Evans he found that a state could not prohibit gay people from receiving protection against discrimination.
Kennedy went on to author the majority opinions in
Lawrence v. Texas, which found anti-sodomy laws unconstitutional;
United States v. Windsor,
which gutted the Defense of Marriage Act (DOMA), a law that prevented
the federal government from recognizing same-sex marriages; and lastly,
Obergefell, the 2015 case that made marriage equality the law of the land.
Three of those decisions —
Lawrence, Windsor and
Obergefell — were all handed down on June 26, perhaps signaling Kennedy's self-awareness of his central place in history.
LGBT advocates were quick to recognize it too; many showered the now
80-year-old justice with praise following the 2015 decision. And when
two of the plaintiffs from Michigan adopted their fifth child last year,
they
named her Kennedy.
Little is known about the justice's views on transgender rights, however, and some legal scholars believe his past decisions on women's roles foreshadow to LGBT rights advocates how he'll rule next year.
"He's had a very limited view of the role of women in society," Cohen said, pointing to a 2001 case in which Kennedy upheld a law that treats foreign-born children of American mothers differently from those of American fathers. In her dissent, then-Justice Sandra Day O'Connor criticized Kennedy's majority opinion for "reflect[ing] the stereotype of male irresponsibility."
"Other than a little here and there around abortion, Kennedy has been very conservative on other gender cases and I think that could come through here," said Cohen.
Kennedy sided with the high court's liberal wing in
striking down one of the nation's toughest restrictions on abortion earlier this year.
But he also authored a 2007 opinion
upholding the federal Partial Birth Abortion Ban,
relying in part on traditional narratives about motherhood and stories
of women who second-guessed their decisions to have an abortion. In her
dissent, Justice Ruth Bader Ginsburg called Kennedy's notions about a woman's place in the family "ancient."
Some legal scholars predict those views may pose a challenge for Grimm and his attorneys, who are tasked with bringing a first-of-its-kind lawsuit before an incomplete Supreme Court bench amid a civil rights debate that has not been going on for very long.
There are no explicit protections based on gender identity in Title IX or Title VII, leaving courts that have considered discrimination claims from transgender individuals in the past to rely on a broader, more modern understanding of what constitutes unlawful sex discrimination.
One of the most prominent court decisions that
supports coverage for transgender individuals
under existing bans on sex discrimination is a 1989 Supreme Court case
involving a Title VII claim by a female employee who was told to "walk
more femininely, talk more femininely, [and] dress more femininely" in
order to secure a promotion. In that case,
Price Waterhouse v. Hopkins,
the high court found evidence of sex discrimination in the "context of
sex stereotyping," setting an important precedent for employment
discrimination claims from transgender individuals.
Kennedy dissented in that case,
saying the
majority had "manipulate[d] existing and complex rules for employment
discrimination cases in a way certain to result in confusion."
"[T]rans rights may be a bridge too far for him," said Columbia Law School professor Katherine Franke in an email to NBC News.
If Kennedy does side with the conservatives and there are still only
eight justices, a 4-4 split would mean the Fourth Circuit Court of
Appeals'
ruling in favor of Grimm would
stand. If by then, however, the court has a new conservative justice
appointed by President-elect Donald Trump, a decision from Kennedy to
rule against Grimm would reverse the Fourth Circuit's decision and
potentially set a national precedent excluding transgender people from
Title IX protection.
Yet there's still a decent chance, some legal experts say, that Kennedy will side with the liberals.
"I think that Kennedy, given his decisions in
Windsor and
Obergefell, is sympathetic to the claims of sexual and gender minorities who say they just want to be treated with respect," said UCLA Law professor Douglas NeJaime. "It's early for the courts to be weighing in on this question… But in terms of substantive transgender rights, I think this case presents the issue in a way that makes concrete the actual harms that people experience on a daily basis when they're discriminated against."
That's certainly the hope of Grimm's attorneys.
On a recent press call, Joshua Block of the ACLU told reporters he was disappointed the Supreme Court decided to take the case, keeping Grimm out of the boys' bathroom in the meantime. But he was also optimistic about the end result.
"The core issue in this case is the dignity of trans people, the individual dignity of trans people," Block said. "And Justice Kennedy has been very vocal in saying that protections against sex discrimination in the Constitution aren't designed to protect groups; they're designed to protect individuals. I think that that insight is really applicable here."
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