By Han Suh, 1L
On March 24, Erwin Chemerinksy, a preeminent Constitutional Law scholar and Dean of UC Irvine School of Law, gave a talk on the legal history of transgender rights movement as part of Harvard Civil Rights-Civil Liberties Law Review’s Symposium on Transgender Rights.
Professor Chemerinksy opened the discussion by highlighting the urgent need for legal protection for transgender individuals. Despite the presence of transgender individuals from time immemorial, earliest references to transgender individuals in legal academia first emerged in 1945 and a robust discussion only began in 1990s.
Next, Professor Chemerinksy illuminated on how existing law could be used to protect transgender rights. Although 19 states and 200+ cities provide legal protection for transgender individuals, there is no existing federal statute that explicitly provides protection. Instead, transgender rights advocates have used the framework of sex discrimination. They have successfully argued that discrimination against non-gender-conforming behavior is sex discrimination. In 1989, the United States Supreme Court validated this approach in Price Waterhouse v. Hopkins.
Most recently, the bathroom backlash such as North Carolina HB2 have ensued. Professor Chemerinsky observed that bathrooms have been at the core of many civil rights efforts such as desegregation and Gay and Lesbian rights. In the bathroom debate, opponents of transgender rights have capitalized on the language of privacy and safety and the language of state rights. Such language of state rights has been used similarly in discussions on abolition, child labor, federal minimum wage, segregation, and Gay and Lesbian rights.
Under the Trump administration, new laws or regulations for transgender rights are highly unlikely. Hence, Professor Chemerinsky argues that existing law, especially laws against sex discrimination, is the most promising tool and framework for litigation. He closed the talk with three additional points. First, transgender right litigation will be substantially different from marriage equality litigation. Marriage equality litigation deliberately started in state courts using state constitutions; whereas transgender rights cases can be and have been brought to federal courts using the constitution and federal statutes. Second, bringing transgender cases to court while Justice Kennedy is in office is a wise strategy. Third, a major public relations effort is necessary to change social attitude to build momentum for progress of transgender rights.
Professor Chemerinsky left us with a powerful case for litigating for transgender rights through the sex discrimination framework and encouraged students and other symposium attendees to actively engage with advancing legal rights for transgender individuals.