I gave a talk in Scotland recently and opened with the quip that I’d moved to America for a job but was staying for the political stability. Joking aside, as a dual citizen who spends a lot of the time in the UK, I don’t have the luxury of self-medicating through the schadenfreude of ‘and I thought things were bad in Washington’. It’s a high bar to out-buffoon our Sharpie-wielding amateur meteorologist of a President, but Boris has been doing his level best.
With the impeachment process picking up steam, the sands of Trump’s electoral coalition are eroding to reveal an impervious bedrock of support of around 40%, who obviously think that soliciting foreign election interference is just fine. Despite the quisling defence of many Republicans, the simple Ukrainian narrative of cash for Biden dirt is getting much better traction than the Mueller soap opera in which the male lead ultimately refused to sing. So, there’s cautious optimism that just maybe, normal service will be resumed in just over a year. And it could be sooner if a handful of Republican senators find the backbone to put country ahead of party as they listen to the stenographer of history typing furiously behind them.
But like a sexually-transmitted disease from an ill-advised electoral one-night stand, the effects of even a one-term Trump Presidency could linger well beyond his departure from the White House and require a full course of legislative antibiotics. Some of Trump’s damage can be fixed quickly, like rescinding newly-issued oil drilling permits and reintroducing humane border policing. Some rebuilding will be longer-term, like the required reforestation of the State Department and other government agencies with competent civil servants. But the most dangerous and long-lasting impact of the Trump Presidency could come from the combination of a right-leaning Supreme Court and Trump’s regressive attitudes towards human rights.
This week, the Supreme Court will hear oral arguments on three cases that could help define how successful Trump will be in challenging Martin Luther King’s belief that ‘the arc of the moral universe is long, but it bends toward justice’. All three cases concern the interpretation of the word ‘sex’ in Title VII of the 1964 Civil Rights Act; the statute that prohibits employment discrimination on the basis of race, colour, religion, sex, and national origin. Two of the cases deal with sexual orientation and the question of whether someone can be fired for being gay. The third case deals with the more complex issue of transgender employment rights as personified by Aimee Stephens, a Michigan funeral director who was fired when she started coming to work dressed as a woman rather than as a man.
The Obama administration repeatedly stated that Title VII protections did cover transgender employees. In fact, the Stephens case was litigated in the lower courts by the Equal Employment Opportunity Commission, which sued the funeral home for violating federal law and won the case on the basis that Stephens was fired because ‘she refused to abide by her employer’s stereotypical conception of her sex’. The Trump administration has now switched sides and is challenging that ruling in the hope that the Supreme Court will remove employment protections from the LGBTQ community.
Trump’s aggressive stance is not surprising, because transgender rights are now a bleeding edge issue in many liberal democracies. Just like gender, race, and gay rights before them, trans rights are now one of those liminal spaces in which we get to debate and figure out what type of society we want to be. The debate in Scotland this year over self-declared gender identification and its potential to infringe on women’s rights amply demonstrated that there’s no settled view of what is fair and equitable when it comes to the transgender community. As the First Minister found out, even raising the issue for debate can be divisive and polarising for groups light years less reactionary than Trump’s Republican Party.
The estimate in Scotland is that only around 1% of the population is transgender, but how that tiny minority is treated has become a progressive litmus test, because it demands an empathetic, open-minded, and careful approach to a very difficult set of issues.
Part of what makes transgender issues so challenging is that activists haven’t followed the playbook of other human rights campaigns, which typically worked within established legal frameworks. Gay rights activists in the US achieved legal equality by claiming that homosexuality is not a choice, but rather an immutable fact, like biological sex or physical disability. Rights are generally attached to those sorts of categories and hence the objective of the movement was to have those claims legitimised and enshrined in law, culminating in legal marriage equality in 2015.
Transgender rights have had a more difficult road to travel, because most advocates have explicitly rejected the seductive simplicity of cleaving the world in two. Instead of binary categories, they view sexuality as a set of behavioural continuums that are messy, fluid, and often contradictory. Rather than conforming to an orthodoxy dictated by societal norms, they claim that everyone needs to construct their own sexual identity; a complex process that defies the easy categories that legislators and courts typically anchor legal protections to.
The transgender movement’s intellectual ground zero are the writings of Judith Butler, an American academic who first argued that gender can conflict with biological sex (which anyway isn’t as binary as it appears) and that gender is a performance act that always needs to be understood in a social context. Over the last few decades, further complexity has been layered on through evidence that performative gender is also distinct from both sexual orientation and from specific behavioural traits that are traditionally seen as masculine or feminine. In this multi-faceted framing of sexuality, you can have a biological female, whose gender identification is male, but who remains sexually attracted to other men, and who modulates their male gender with traditionally feminine characteristics like wearing make-up.
Confused? So are many supporters of trans rights who are naturally empathetic but still struggle to understand this complex and multi-layered approach to human sexuality.
Not surprisingly, this complexity doesn’t give easy answers to practical public policy questions like which bathroom should transgender females be allowed to use, and should transgender woman be allowed to use domestic-abuse shelters and sleep in the same room as female survivors of rape and violence? These are hard questions, and at this point in the development of trans rights, there may still be situations where biological sex rather than gender identity needs to be the basis for public policy. It’s clear that this type of nuanced grappling with questions of trans equality doesn’t fit easily into Trump’s simplistic ‘us and them’ worldview, or indeed the worldview of many of the people who voted for him, hence trans rights have been targeted by Republicans as an important ‘base issue’ to be highlighted and amplified.
That campaign began just weeks after his inauguration, when Trump changed federal guidance on the treatment of trans teenagers in schools. That was followed by a ban on trans people serving openly in the military and more recently by restrictions on federal healthcare funding. The campaign to undermine trans rights will culminate this week when the Solicitor General stands in front of the Supreme Court and argues that refusing to dress in a way that matches your biological sex is a perfectly legitimate reason for being fired.
At the core of the administration’s argument is that ‘in 1964, as today, sex discrimination meant differential treatment based on a person’s biological sex, something fixed and objectively ascertained based on chromosomes and reproductive anatomy’ and therefore neither gender identity nor sexual orientation can be the source of sex-based discrimination. The opposing view, backed by the American Psychological Association, is that ‘Aimee Stephen’s experience as a woman who is transgender, as with all transgender individuals, is a physical and anatomical reality. It is not a choice, it is not a fiction, and it has no bearing on her ability to work’.
If the Court rules in favour of a narrow biological definition of sex under Title VII, it will overturn eight separate Federal Appeals Court and 35 District Court rulings that transgender discrimination is indeed sex discrimination, and in doing so will turn the clock back on American LGBTQ rights to somewhere in the 1980s.
As if that wasn’t concerning enough, Trump’s attack on transgender rights is also a trojan horse for something far more pernicious and regressive. The legal basis for a lot of trans rights has been a 1989 ruling against accountancy firm PWC that, under Title VII, gender stereotypes can’t be a basis for discrimination, so you can’t be fired for being insufficiently male or female. This ensured that a woman couldn’t be fired for having short hair or for the absence of a short skirt.
While this week’s oral arguments will focus on sexual orientation and transgender discrimination, if the justices overturn the PWC precedent, it could take us back to a Mad Men era when women were expected to be eye candy and any type of gender non-conformity could be the basis for legal discrimination. Welcome to 2020 America, where you can fire a woman for being butch and where you no longer need to tolerate that guy in marketing with the pink hair and the earring.
Just as Senate Republicans will need to decide during an impeachment trial whether they will cower under Trump’s Twitter hammer or choose to be on the right side of history, the new Supreme Court session will also show whether this conservative court is willing to stiffen its spine and reaffirm hard-earned equal employment rights. If they don’t, it opens the door for LGBTQ discrimination in other areas like healthcare and education and could also signal the court’s willingness to overturn other established precedents like a woman’s right to have an abortion.
Under that scenario, the damage wrought by the Trump Presidency may take a long time to repair and it could be a generation before America is once again able to bend MLK’s moral arc back towards justice. Journalist William F Buckley once famously said that ‘a conservative is someone who stands athwart history, yelling stop’. Trump is no conservative. Instead he stands athwart American social progress yelling back up, fixated on returning the country to a golden age in which women and minorities knew their place, sexual ‘deviancy’ was illegal, and the white male patriarchy ruled supreme.
Yes, UK politics may indeed be a hot democratic mess right now, but maybe Scotland can take some solace from the fact that, regardless of what happens with Brexit, no woman on that side of the Atlantic is going to get legally fired in 2020 simply for wearing trousers.
By Alan McIntyre | 9 October 2019
