Outward

How Obergefell Could Help Transgender Rights

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“The Constitution promises liberty to all … to define and express their identity.”

Photo by Yana Paskova/Getty Images

Friday’s Supreme Court decision was a huge victory for the rights of gay, lesbian, and bisexual folks and those that love them. But it may also be a big win for the rights of transgender individuals and their loved ones. In the opening paragraph of Justice Kennedy’s majority opinion, the court proclaims “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity.” (Emphasis added.)

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The court’s recognition that both due process and equal protection require that individuals be permitted to self-determine—to define and express themselves—has unmistakable extension to rights for the transgender community. That the Supreme Court’s endorsement of a right to identity expression came in the context of a decision on sexual intimacy further suggests that the Obergefell case will have positive ramifications for transgender rights.

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Demands for transgender rights are often premised on recognition of the fact that the sex assigned to many people at birth does not comport with the gender experienced, lived, and expressed by those individuals later in life. As such, people should have a right to define and express their gender and should not be made social prisoners by the sex assigned to them. Understanding that transgender identity is, in part, about access to the ability express and define oneself makes the relationship between the court’s ruling and transgender rights clear.

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For example, the court’s implicit recognition that we should be able to express our identities could mean that transgender individuals have a constitutional right to change their gender marker on their birth certificate, synchronizing their government identification with their true gender identity. (Tennessee, for instance, still does not allow such a change to birth certificates even with gender confirmation surgery.)

It could mean that government work places and public schools are required to make restrooms available to transgender individuals consistent with the individuals’ gender expression, strengthening the protections already provided by Title VII of the Civil Rights Act and Title IX.*

The ruling could require that prisons and jails house the disproportionate number of incarcerated transgender people in facilities consistent with their gender identity and safety needs. 

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The decision could also mean that government benefit programs, including state-sponsored health care programs, cannot forbid access to certain medical procedures because the procedure is not one traditionally made available to individuals assigned a certain sex at birth. (For example, it could guarantee that a transgender woman can have her mammogram covered by insurance and that the state-sponsored insurer cannot deny coverage merely because the woman was assigned “male” at birth.)

The Supreme Court’s subtle imprimatur of a constitutional right to gender expression adds to a growing body of SCOTUS jurisprudence that can be used to advance transgender rights. For instance, in Price Waterhouse v. Hopkins, the Supreme Court held that treating someone differently because they did not conform to certain gender stereotypes was a form of sex discrimination. And in United States v. Virginia, the court acknowledged that any differences between male and female individuals were not so extreme to justify wholesale exclusion of women from a state-sponsored military institute.

In short, the court’s belief that individuals have a right to define and express themselves continues the march forward not only for LGB rights, but for transgender rights as well. Today, we should rejoice. Tomorrow, we should use Obergefell to further equality for our trans brothers and sisters.

*Correction, July 29, 2015: This post originally characterized Title IX as being part of the Civil Rights Act of 1964. In fact, it is part of the Education Amendments of 1972.

Read more of Slate’s coverage of same-sex marriage at the Supreme Court

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