A federal judge in Manhattan has ruled for the first time that transgender people are entitled to protections against discrimination under the U.S. Constitution. If the ruling is affirmed on appeal, it would mark another advancement toward heightened civil rights for gays, lesbians, and others who were marginalized only a generation ago.
Adkins v. City of New York
The case, Adkins v. City of New York, was issued on November 15, 2015 by U.S. District Judge Jed S. Rakoff. Justin Adkins was an Occupy Wall Street protester who was arrested on the Brooklyn Bridge in October 2011. Unlike the other protesters, Adkins was handcuffed to a wall for seven hours at the precinct. Initially, he was placed in a cell with other men. But he was later told to sit in a chair in the bathroom. After that, the officers cuffed him to the wall and denied him any food. He brought this lawsuit alleging that he was mistreated because he is transgender. He alleges the mistreatment violates the Equal Protection Clause.
A case like this was unthinkable even ten years ago. The ruling tells us that even federal judges who grew up in a legally conservative era now recognize that the old rules cannot apply at a time when the U.S. Supreme Court says the Constitution protects the right of same-sex marriage.
Like most other constitutional provisions, the Equal Protection Clause says very little: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” This clause is not interpreted literally. Were that the case, someone would file a lawsuit every time the government made a decision that affected two people differently. Most governmental decisions are legal under the Equal Protection Clause if the government has any conceivable basis to justify treating two people or different groups differently. In those cases, courts apply the “rational basis test,” which allows the government to enact a law if there is any rational basis for doing so. As this test is weighted in favor of the government, most lawsuits that implicate the rational basis test fail. The Constitution does not always favor majority interests, however. The Supreme Court has interpreted the Equal Protection Clause to ensure that the majority does not trample upon the rights of racial minorities and women. In what may be the most famous footnote in legal history, the Supreme Court in 1938 said that the Constitution prohibits discrimination against discrete and insular minorities. Under normal circumstances, the Court said, legislation adopted by majority votes in Congress is presumed constitutional. But that is not always the case. In United States v. Carolene Products, the Court stated:
“There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth. …
“It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation. …
“Nor need we inquire whether similar considerations enter into the review of statutes directed at particular religious…or national…or racial minorities…[W]hether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.”
In the decades following the Carolene Products ruling, the Supreme Court determined that laws and regulations that discriminate against blacks and other racial minorities violate the Constitution unless the government can advance a compelling interest for the racial classification. The courts call that “strict scrutiny,” i.e., laws that discriminate on the basis of race will be strictly scrutinized to ensure they are absolutely necessary. While strict scrutiny is normally the kiss of death, the Supreme Court has said that certain affirmative action programs may satisfy constitutional review. Laws that discriminate on the basis of gender are subjected to “intermediate scrutiny,” which means the government must advance an important governmental interest in defending them. An example of how intermediate scrutiny shot down an unconstitutional program was in United States v. Virginia, which held in 1996 that the men-only program at the Virginia Military Institute violated the Equal Protection Clause.
United States v. Windsor
Despite offering constitutional protection for racial minorities and women, the Supreme Court had never extended heightened scrutiny review for laws and rules that discriminated against gays and lesbians. However, in 2013, the Court in United States v. Windsor struck down the Defense of Marriage Act, which had prohibited the federal government from recognizing same-sex marriages. While the Court did not rule that sexual orientation is a protected class under the Equal Protection Clause, it concluded that DOMA was “a deprivation of the liberty of the person protected by the Fifth Amendment.” The Court applied the principle that “[t]he Constitution’s guarantee of equality ‘must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot’ justify disparate treatment of that group. In determining whether a law is motivated by an improper animus or purpose, ‘[d]iscriminations of an unusual character’ especially require careful consideration.” It was a lower court ruling in Windsor that laid the groundwork for Judge Rakoff’s ruling in Adkins v. City of New York. Before Windsor reached the Supreme Court, the Second Circuit Court of Appeals in Manhattan had also struck down DOMA, but on different grounds than the Supreme Court had adopted. The Second Circuit ruled for the first time that discrimination on the basis of sexual orientation may violate the Equal Protection Clause. The Court of Appeals applied intermediate scrutiny in reviewing DOMA, summarizing the principles set forth in the famous footnote in Carolene Products: “The Supreme Court uses certain factors to decide whether a new classification qualifies as a quasi-suspect class. They include: (A) whether the class has been historically ‘subjected to discrimination’; (B) whether the class has a defining characteristic that ‘frequently bears [a] relation to ability to perform or contribute to society’; (C) whether the class exhibits ‘obvious, immutable, or distinguishing characteristics that define them as a discrete group’; and (D) whether the class is ‘a minority or politically powerless.’ Immutability and lack of political power are not strictly necessary factors to identify a suspect class.”
Under this four-part test, the Second Circuit struck down DOMA because: “(A) homosexuals as a group have historically endured persecution and discrimination; (B) homosexuality has no relation to aptitude or ability to contribute to society; (C) homosexuals are a discernible group with non-obvious distinguishing characteristics, especially in the subset of those who enter same-sex marriages; and (D) the class remains a politically weakened minority.”
Adkins, the transgender Occupy protester, benefits from the Windsor ruling. Prior to his case, the courts had yet to decide whether to carefully scrutinize governmental policies that discriminate against transgender people. This meant that Judge Rakoff had to resolve this case from scratch, without the benefit of any precedents. He applied Windsor in ruling that, like gays and lesbians, transgender persons are a discrete and insular minority that have long suffered discrimination and have little if any influence in the political process. Judge Rakoff further noted that “transgender status bears no relation to ability to contribute to society. Some transgender people experience debilitating dysphoria while living as the gender they were assigned at birth, but this is the product of a long history of persecution forcing transgender people to live as those who do not.”
A Transformative Ruling
The Adkins ruling is a major event in the history of American law. Never before has a federal judge ruled that a transgender plaintiff is entitled to heightened protection under the Equal Protection Clause. For good reason, progressives have criticized the judiciary—along with other governmental branches—as being insufficiently receptive to the social and economic problems that plague society. But one positive is the system of legal precedent, which allows judges to rule in favor of one plaintiff because a similar case against a prior plaintiff laid the groundwork for future rulings. Courts call that stare decisis, which is Latin for deciding cases consistent with precedent. The activist lawyers who extended protections to racial minorities and other protected classifications like gender and sexual orientation could not have known that a federal judge in 2015 would use those cases in ruling in favor of a transgender plaintiff.
This ruling does not mean that Adkins wins the case. It simply means he can proceed with his claim. The ruling arose from the government’s motion to dismiss the lawsuit. Before the parties had the opportunity to take depositions and subpoena records in preparation for trial, the government argued that the case had no legal basis because transgender status is not entitled to any protection under the Equal Protection Clause and that the government need only set forth any reasonable basis for treating Adkins as it did. Judge Rakoff rejected that argument in finding that the government needs more than just a reasonable basis to treat Adkins this way and that the government must show that handcuffing him to the wall because of his transgender status was “substantially related to an important government interest.” The case now proceeds to discovery, or pre-trial fact investigation, guided by the legal standard adopted by Judge Rakoff.
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