How much we lose at the Supreme Court will depend on how much we ignore

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Oral arguments are still a few weeks away, but it seems likely that the Supreme Court’s decision in Harris Funeral Homes v. EEOC will not be in favor of trans people.

That does not mean we should give up.

Related: Clarence Thomas suggests the Supreme Court’s marriage equality ruling should be overturned

Justices Thomas, Alito, Gorsuch and Kavanaugh are capable of concocting an opinion that will non-hyperbolically be compared to Dred Scott v. Sandford, not because slavery is at issue (it isn’t), but because of the opportunity for putting a new, but equally odious spin on history.

“[T]he legislation and histories of the times, and the language used in the Declaration of Independence, show that neither the class of persons who had been imported as slaves nor their descendants, whether they had become free or not, were then acknowledged as a part of the people, nor intended to be included in the general words used in that memorable instrument.”

Thanks to Chief Justice Roger Taney, no person of African descent – whether born a slave, born into freedom or having transitioned from bondage to freedom – could ever be a legal person, much less a citizen of the United States….

Until a civil war intervened.

Thomas, Alito, Gorsuch and Kavanaugh will find a way to view all trans rights at all levels of government as legal nullities.

But math matters.  They are but four; a precedential Supreme Court majority takes five.

Chief Justice John Roberts too will rule against the notion of “sex” in Title VII encompassing trans people either per se or via gender nonconformity.  He likely will agree personally with all that the other four might write.  But his penchant for actually giving a damn about the Supreme Court as an institution allows for hope that he will write separately, carefully limiting his ruling against trans rights to those two issues of statutory interpretation – of legislative history.

Neo-Dred Scott-ism will not have five signatures and, thus, will not constitute the holding of the court.  Aimee Stephens will lose her case 5-4, the same margin by which trans people will lose the federal protections we were so often told were so robust.  But with the true tally being 4-1-4, in the short term, trans people will not be erased from American jurisprudence; state and local laws that textually provide trans rights will continue to do so.

That will not be the silver lining to a dark cloud.  It will reset the federal clock to half-past Ulane v. Eastern Airlines.  Think of it more as a dark cloud that simply is not an EF-5 tornado.

Even so, trans people who live outside of cities and states with pro-trans laws will need legal umbrellas.

Here is one that some, though not all, might be able to use.

Four decades ago the Illinois Supreme Court partially invalidated Chicago’s anti-crossdressing ordinance.  The trans women defendants were preparing for surgery by living full time in their post-transition identities (“real life test” or RLT, in contemporary parlance.)

The court pointed to Illinois’ trans birth certificate statute (even in 1978 almost a quarter-century old)  and reasoned that, by establishing a mechanism for changing the sex designation on one’s birth certificate, “the legislature has implicitly recognized the necessity and validity of such surgery. It would be inconsistent to permit sex-reassignment surgery yet, at the same time, impede the necessary therapy in preparation for such surgery.”

Enacting a trans birth certificate statute impacts the state’s legal concept of “sex.”

A few courts embraced this notion in marriage cases in the years immediately preceding Obergefell v. Hodges.  But the same principle should apply to sex discrimination law.

Only recently did a state high court ‘go there.’

The state was Missouri.  The case was R.M.A. v. Blue Springs R-IV School District.  A young trans man alleged that denial of access to male-designated restrooms and locker rooms was sex discrimination under the Missouri Human Rights Act (MHRA). Predictably, the Alliance Defending Freedom filed a brief in opposition.  Ignoring relevant law and history, it proclaimed, “In 1986, sex was objectively defined by human reproductive nature.”

The court’s majority found that, at the very least, the man’s allegation did fit within the MHRA’s expectations. The dissent viewed his legal sex to be irrelevant and, by holding otherwise, the majority had “discard[ed] the substance of the MHRA.”  The majority, however, tucked the following into a footnote: “[N]o lesser authority than the General Assembly has acknowledged that one’s sex may not remain throughout a person’s life what it was identified to be when that person was born.”

Unfortunately, it failed to insulate itself from charges of legislating from the bench; the trans-positive footnote included nothing about the history that conclusively demonstrates it was merely applying all relevant law and not creating any.

The ADF was accurate on a microscopic point: The MHRA was enacted in 1986.  But the birth certificate statute?  Two years earlier.  161 out of the 197 people who served in the Missouri General Assembly in 1984 were also there in 1986.  125 of those 161 voted yes on both bills.  There were no votes against the 1984 birth certificate bill and only 10 who voted yes on it subsequently voted no on the MHRA bill.

There can be no intellectually honest argument that, in 1986, the Missouri General Assembly did not know that sex was not limited to binary chromosomal stasis.

During the ENDA Crisis of 2007, historian Susan Stryker issued a pro-inclusion position paper entitled It’s Your History—Use It!

We all know what did and did not happen in 2007 and 2009.  What did not happen is at least part of the reason Aimee Stephens stands to lose.  An inclusive ENDA (or Equality Act) would still be subject to phony religious freedom claims and privacy hysteria, but the statutory interpretation question currently before the U.S. Supreme Court would be non-existent.

There are other matters that neither ENDA nor the Equality Act would solve.

No matter how Harris v. EEOC goes, trans people still need to have sufficient knowledge of our own legal history to be able to make the ‘sex + birth certificate statute’ argument where it can be made.  Title VII, after all, only covers employers of 15 or more people.  Harris will not change that.

But the MHRA that the Missouri Supreme Court interpreted favorably?  It covers those employing as few as six people.  Michigan’s Elliott-Larsen Civil Rights Act?  Even just one person.

Dueling administrative authority exists regarding positively interpreting it.  However, even if all was positive, reliance on such would not be wise.  Somewhat similar to the situation in Missouri, Elliott-Larsen and the state’s trans birth certificate statute were enacted only two years apart – although the birth certificate statute came second.

Still, if the issue ever gets to the Michigan Supreme Court, wouldn’t it be a better idea to point out pro-trans history than to ignore that both laws were considered and approved by most of the same legislators (and, for the mic drop, by the same Republican governor)?

It is all still our history. We are going to need to continue to use it – one way or another.

Katrina C. Rose is an attorney who also holds a Ph.D. in history.  This column is derived from her article “After R.M.A v. Blue Springs, Can All Trans Birth Certificate Statutes Finally Mean Something More?”, which will appear next year in the Concordia Law Review.

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