An Immediate Need to Impose Bigotry: Rogue Court Endorses Trump’s Ideology
Leading Off: Millions of trans Americans and their families are contending with the harmful and far-reaching implications of the justices’ endorsement of passport bias. Only the ballot box, as a Pennsylvania town demonstrated, offers an answer.
by Valorie Van-Dieman and Billie Jean Sweeney
Trans people across the United States begin the week grappling with the implications of the Supreme Court’s decision to allow Donald Trump to impose his ideologically driven requirement that passports display a person’s “biological sex.” Lower courts have yet to fully adjudicate the issue, but the justices stepped in and endorsed what New York Times columnist M. Gessen called Trump’s “campaign to force trans people out of public life — by executive-ordering us out of existence.”
The harmful ramifications are immediate, direct and far reaching for the nearly 3 million Americans who are transgender. “Forcing transgender people to carry passports that out them against their will increases the risk that they will face harassment and violence and adds to the considerable barriers they already face in securing freedom, safety, and acceptance,” said Jon Davidson, senior counsel for the ACLU’s LGBTQ & HIV Project.
Yet the consequences go further still, affecting millions more. The ACLU’s Chase Strangio told PBS in February that Trump’s order “opens the door to sex-based policing that cannot be enforced without subjecting everyone to some sort of scrutiny, to some sort of invasive process that will harm us all.”
The justices effectively reversed lower court decisions that had been pending, waving through the president’s campaign of bigotry without demanding the administration demonstrate any immediate need.
Justice Ketanji Brown Jackson, who wrote a dissenting opinion for the Democratic-appointed justices, including Elena Kagan, and Sonia Sotomayor, called the majority’s unsigned ruling a “pointless but painful perversion of our equitable discretion.”
“The Government seeks to enforce a questionably legal new policy immediately,” she wrote, “but it offers no evidence that it will suffer any harm if it is temporarily enjoined from doing so, while the plaintiffs will be subject to imminent, concrete injury if the policy goes into effect.”
Trump’s gender-binary edict reverses decades of State Department practice, Time reported. Since 1992, passport applicants could choose different sex markers from what they were assigned at birth, provided they had supporting documents. The Biden adinistration added a third option, X, for intersex, nonbinary and gender-nonconforming people.
Gessen, the NYT columnist who uses X on their passport, said the “consequences for Americans who travel abroad can be dire. If your appearance does not match your gender presentation, you may be unable to move across borders or board planes. No airline wants to take the risk of transporting people who aren’t who they say they are.”
Gessen, who grew up in the Soviet Union and has written extensively about repression in autocratic societies, said “state-issued documents aren’t just tools to allow identification; they’re also tools to enforce hierarchies.”
The point of Trump’s executive order “was not to restore ‘historical facts’ but to enforce a gendered social hierarchy and to punish those who do not conform to it.”
Without a high court that will challenge the administration’s human rights abuses on this and many other fronts, Americans can look only to the ballot box for relief. They began to speak on Tuesday.
Among the major Democratic victories last week, Pennsylvania saw the election of its first openly transgender mayor, Eria Deuso. With the right wing waging a national war against transgender people, it is significant that Deuso won this election in a landslide, 64 percent versus her Republican opponent’s 35 percent.
In a statement posted following her victory, Deuso said, “Being elected as Pennsylvania’s first openly transgender mayor is deeply meaningful, and I carry that responsibility with pride and humility. I hope it reminds anyone who has ever felt unseen, unheard, or underestimated that your voice matters, and that you belong in the room where decisions are made.”
Another damaging federal court ruling, in the 6th Circuit, struck down an Ohio school district policy that barred students from intentionally misgendering other students or using other discriminatory language toward transgender students. The ruling stems from a two-year court battle brought by the right-wing organization, Parents Defending Education.
The plaintiffs argued that students have the right to use incorrect pronouns for other students as a matter of free speech, invoking both the First and Fourteenth amendments. The en banc ruling by the Republican-majority court, sets a worrying precedent for future cases of hate speech and discriminatory language.
In effect, the concurring judges conferred free speech protections on certain pronouns – the ones they see as “biological” – while withholding it for others.
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