The Obama administration is taking monumental strides in favor of transgender rights that may seem unprecedented, but trans advocates have differing takes on whether these developments represent a change since the start of President Obama’s tenure in the White House.
The new initiatives, unveiled last week, began with a lawsuit filed by U.S. Attorney General Loretta Lynch against North Carolina’s House Bill 2, which prohibits transgender people in the state from using public restrooms in schools and government buildings consistent with their gender identity. In widely praised remarks announcing the lawsuit, Lynch compared the law to Jim Crow laws, calling House Bill 2 “state-sponsored discrimination.”
At the end of the week, the Departments of Education and Justice issued joint guidance informing schools discrimination against transgender students, including in bathroom use, constitutes a violation of Title IX of the Education Amendments of 1972, which could result in a loss of federal funds for the state.
Finally, the Department of Health & Human Services announced it had made final a rule prohibiting anti-trans discrimination in health care and insurance. The rule requires insurance plans to cover transition-related medications, gender reassignment surgeries and other treatments for transgender people if these plans cover similar services to non-transgender people with other medical conditions.
The trans focus of these initiatives stands in contrast to more gay-centric progress earlier in the Obama administration, such as efforts to repeal “Don’t Ask, Don’t Tell” and ensure marriage rights for same-sex couples nationwide. Support for trans rights was often done in the context of initiatives in favor of LGBT community writ-large, such as Obama’s support at the start of his administration for a trans-inclusive Employment Non-Discrimination Act and hate crimes protections legislation.
Much like Obama’s “evolution” before he announced in 2012 he supports same-sex marriage, observers might assume a similar evolution in support of trans rights.
Jillian Weiss, a transgender advocate and law professor at Ramapo College, said of the Obama administration “there has been a change in emphasis on trans rights” that has become manifest in the new initiatives.
“While there have been some milestones on federal trans rights the past seven years, trans rights have generally taken a backseat to other LGB issues and marriage equality.” Weiss said. “The current initiative regarding HB2 and the Title IX guidance represent a sea change in the level of endorsement of transgender rights. Certainly the extensive statement given by Attorney General Lynch regarding the administration’s level of commitment to trans people is unprecedented. Trans rights are now front and center in a national way that has never before occurred.”
Mara Keisling, executive director of the National Center for Transgender Equality, nonetheless said pro-trans initiatives like the ones seen last week have been happening all along and counted 100 victories since the start of the Obama administration.
“I guess it’s a little bit of evolving in one sense,” Keisling said. “At first, early in the administration, we were nervous about being too public about stuff, and the Obama administration was certainly nervous about being too public about stuff, and nobody is all uptight about that anymore. So they were doing the really good work, but none of us were willing to have a public fight about it on Fox News.”
As evidence of earlier initiatives on trans rights, Keisling pointed to the State Department decision allowing transgender people to change the gender marker on their passports and the Department of Housing & Urban Development’s rule prohibiting anti-LGBT discrimination in government-sponsored housing. In 2011, the Department of Education issued a “Dear Colleague” warning schools about discriminating against students that was similar to the guidance last week.
Keisling recalled in 2009, trans advocates were upset Obama’s memorandum on LGBT rights called on federal agencies to implement benefits for same-sex couples without mentioning transgender people, but added that concern ended up being unfounded.
“We were all kind of worked up about it,” Keisling said. “It turned out to be one of the most important things that happened because the agencies did go back and analyze it and start doing stuff. And just the president saying, ‘I support doing stuff for LGBT people turned out to be a huge, huge deal.’ And that was both sexual orientation and gender identity early on.'”
Any sort of change may be the result of majority support in the American public for transgender rights. A recent CNN/ORC poll found 57 percent of Americans oppose restrictions on transgender bathroom use, compared to the 38 percent who support them. A broader 75 percent were in of favor laws assuring equal protection for transgender people in employment, housing and public accommodations.
White House Press Secretary Josh Earnest said Tuesday he wouldn’t describe the new pro-trans efforts as either reflecting society or an administrative decision, but more of a response to Republicans enacting state anti-LGBT laws.
“From conservatives, you basically have seen the suggestion that they haven’t really put forward a specific suggestion for how they believe that the rules should be applied,” Earnest said. “The best that they seem to have come up with is suggesting that birth certificates should be examined before anyone can enter a public bathroom. So that doesn’t make sense. That certainly is an indication that they are much more interested in politics than they are in actually trying to solve the problem.”
Earnest also denied the efforts on transgender rights are a way for the administration to make up on the perceived slow progress on LGBT rights because of Obama’s 2012 endorsement of same-sex marriage.
“I think that at every stage, it’s this administration that fought for and successfully ended ‘Don’t Ask, Don’t Tell,'” Earnest said. “It’s this administration that declined to continue defending the Defense of Marriage Act as litigation contesting that law wound its way through the courts. So, again, I think as it relates to this issue, it is clear that it’s Republicans who are seeking a political advantage and an administration that is seeking to offer tangible, practical advice to school administrators who are seeking to protect the safety and dignity of every student at their school.”
A Wall Street Journal op-ed this week had another take on the pro-trans initiatives, saying the joint guidance for schools amounts to President Obama seeking to ignite a “culture war” ahead of the 2016 presidential election.
“The Obama administration’s preoccupation with sex, whether in the sophomore year or the fourth grade, raises questions about whether the federal bureaucracies know at all what they are doing on anything resembling the merits,” the Journal writes.
Earnest slammed the Wall Street Journal for its criticism of the guidance, saying he doesn’t think the piece “stands up to a lot of scrutiny.”
“I don’t make a habit of reading the editorial page of the Wall Street Journal I think for obvious reasons, but I did happen to take a look at it today, and I noticed that the editorial also noted that somehow Democrats appeared to be obsessed with sex, which I thought was a rather amusing observation on their part because it’s Republicans who have, for example, passed this HB2 law in North Carolina,” Earnest said.
Even with the pro-trans initiatives unveiled last week, trans advocates have more on their agenda they want to see from the Obama administration, such as the finalization of a proposed rule from the Department of Housing & Urban Development making clear anti-trans discrimination is prohibited and ending immigration detention for trans undocumented immigrants, who face either solitary confinement or harassment and assault while in detention.
One high-profile item that remains is lifting the 1980s-era ban prohibiting transgender people from serving openly in the armed forces. Defense Secretary Ashton Carter announced last year the Pentagon would conduct a review of the policy, but that effort has seemingly stalled out, leaving questions about whether the ban will remain in place at the end of the Obama administration.
Sue Fulton, president of the LGBT military group SPARTA, said the time has come for the Obama administration to pull the trigger and implement openly trans service.
“I think if transgender service members in places like North Carolina and Mississippi and Texas were able to be open, that would change the dynamic in those states,” Fulton said. “I don’t know what the hold up is in getting transgender military service. We’ve answered every question they’ve asked, and we’re just waiting.”