Greta Martela, a transgender woman who founded of a crisis line for transgender people, is herself feeling crisis-stricken these days.
Worried about the legal status of herself and her wife—who is both transgender and an immigrant who was recently detained by immigration authorities—Martela is in the process of leaving everything behind in Illinois and heading for the liberal powerhouse of California, as she waits to see what happens next in Washington, D.C.
“I am completely upending my life to find a little bit more security for my family,” says 47-year-old Martela. “It feels like I’m in the process of becoming a refugee.”
Since before Election Day, LGBTQ rights organizations have been tirelessly sending press releases about what the Trump Administration might or might not mean for people in the transgender community. Though much has been speculation, those groups got a concrete indication on Friday, when the Department of Justice backed away from a strategy the Obama Administration had been pursuing in the courts to support the rights of transgender students.
The move “sends a strong signal” that the Justice Department may no longer be pursuing any cases on behalf of transgender people, says the Human Rights Campaign’s Sarah Warbelow. And that shift is setting off alarm bells in part because the courts have been a great source of legal assurance for such gender minorities, who are not explicitly protected from discrimination in employment or housing or the public square by any federal law.
Lawmakers have tried and failed to pass different versions of such an act in almost every session of Congress since the 1990s. Bypassing that stalemate, the Obama Administration used means other than legislation to shore up protections for the community—going so far as to sue the state of North Carolina over a law the restricts bathroom access for transgender people—and directing schools around the nation to allow transgender students to use the bathrooms and other facilities that align with their sense of self. But interpretive guidance and executive orders are things the Trump Administration can roll back without the help of Congress, too.
On Wednesday, nearly 800 parents of transgender children sent an open letter to the President saying that the move by the Justice Department has left them “heartbroken and scared,” adding that “the decision by your administration to undermine our legal progress is mean-spirited and potentially threatens the wellbeing of our beloved children.”
One of those parents is J.R. Ford, who has a five-year-old transgender daughter who attends kindergarten in the Washington, D.C., area. He says his family has encountered no serious obstacles in recent years as they changed her name on rosters at school and through the court system. She uses the girls’ room at school and it has been a “non-issue,” he says. Yet Ford is now waiting “for the other shoe to drop,” he says, particularly because he does not have “a lot of confidence in this administration.”
After the Obama Administration issued guidelines last year that instructed schools to respect the identities of transgender kids and provide access to facilities accordingly, more than a dozen states sued, arguing that the government was overstepping its bounds. In August, a Texas court put a hold on the federal government going after schools who flouted the guidelines, and the Obama Administration had been trying to limit that hold to only the states that were party to the lawsuit. Trump’s Justice Department dropped that challenge, leaving the hold in effect nationwide.
Even though the guidelines themselves have not been formally rescinded, for people like Ford, the act of dropping the challenge amounts to “targeting trans kids” because they are already in a precarious position—right in the middle of America’s culture wars. “It’s scary,” he says. “It’s scary for me as a dad.”
A central question in such court cases is whether bans on sex discrimination implicitly protect people from discrimination on the basis of gender identity, given that such discrimination is often based on expectations one has for people based on their sex at birth. In past years, the Justice Department and Equal Employment Opportunity Commission have repeatedly found that transgender people are protected by such bans, yet rulings on the point have been divided. Many are hoping for clarity next month, when the Supreme Court considers the case of Gavin Grimm, a transgender student from Virginia who sued his school board after being banned from the boys’ room at school.
Should the court rule on that question and determine that the word sex is not so encompassing, transgender people will still have some explicit protections on the state and local level. Many large cities and nearly half the states forbid discriminating against someone for being gay or transgender.
But while some states and cities are amending their non-discrimination ordinances to explicitly cover LGBT people—as Jacksonville, Florida, did on February 14—others have been considering measures that would nullify such protections or ban cities from passing them. That was the case with North Carolina’s controversial HB2, which remains on the books despite ongoing attempts by Democrats to repeal the law that has wreaked economic havoc in the state.
After swirling reports that Trump was going to rescind an Obama-era executive order that prohibits workplace discrimination for LGBT federal contractors, he announced that he would leave it in place. Though drafts of such an executive order had circulated, a statement issued by the White House in early February stated that “President Donald J. Trump is determined to protect the rights of all Americans, including the LGBTQ community” and that the order would “remain intact” at his direction.
Martela says that such back and forth has left her with a gnawing sense of uncertainty. And she has seen similar panic among callers to her organization, Trans Lifeline, too. In the days after the election, the call volume jumped from about 100 per day to about 500, she says—some people worried about being harassed, others concerned about suddenly losing transition-related medical coverage if Obamacare disappears.
“It hasn’t been that long that trans people have been protected at all in our society,” she says. “It’s hard as a community to watch whatever small progress we’ve made kind of disappear.”
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