If You Don’t Support Civil and Human Rights of Trans People, “Mind Your Own Damn Business”

A majority of judges on the U.S. 11^th Circuit Court of Appeals declined to reconsider Alabama’s ban on gender-affirming care, which ruled that parents do not have a right to allow gender-affirming care for young people. Previously, a three-judge panel sided with the Alabama legislatures’ ban on gender-affirming care.

Alabama’s 2022 law makes it a felony, punishable by up to 10 years in prison, for doctors to prescribe puberty blockers or hormones to a transgender person under the age of 19. The law also prohibits genital surgeries, even though physicians have not performed these on minors in the state.

Donald Trump appointed two of the 10 members of the U.S. Circuit Court of Appeals who ruled not to reconsider Alabama’s law, Judges Barbara Lagoa and Andrew Brasher. Both in the three-panel and the concurring full panel ruling, Lagoa drew from the U.S. Supreme Court’s pronouncement in Dobbs v. Jackson Women’s Medical Center, in which “Justice” Samuel Alito wrote that the 14^th Amendment to the U.S. Constitution does not protect any right “not deeply rooted in the nation’s history and traditions.”

While not stating specifically that legal abortions under the 1973 Roe v. Wade are now “deeply rooted in the nation’s history and traditions,” during his confirmation hearing as a Supreme Court “justice” in January 2006, Alito declined to speak much directly about Roe. He called it an “important precedent of the Supreme Court” but stopped short of calling it settled law.

“Roe v. Wade is an important precedent of the Supreme Court. It was decided in 1973, so it has been on the books for a long time,” said Alito. “It is a precedent that has now been on the books for several decades. It has been challenged. It has been reaffirmed. But it is an issue that is involved in litigation now at all levels.”

Other conservative justices who voted to overturn Roe either equivocated or committed perjury at their Congressional hearings. Neil Gorsuch in 2017 at his Congressional hearing referred to Roe as “precedent,” which is the “anchor of law. It is the starting place for a judge.”

“I would tell you that Roe v. Wade, decided in 1973, is a precedent of the United States Supreme Court. It has been reaffirmed,” declared Gorsuch. “A good judge will consider it as precedent of the U.S. Supreme Court worthy as treatment of precedent like any other.”

Brett Cavenaugh at his hearing in 2018 referred to Roe as “settled law.” “It is settled as a precedent of the Supreme Court, entitled the respect under principles of stare decisis,” he said. “The Supreme Court has recognized the right to abortion since the 1973 Roe v. Wade case. It has reaffirmed it many times.”

Stare decisis is a Latin term meaning “to stand by things decided” and as a legal principle directs courts to affirm previous judgments (or judgments of higher tribunals) in deciding a case with comparable facts.

Regarding Roe v. Wade, a critical question begs to be addressed: why would stare decisis not be included under the category of “deeply rooted in the nation’s history and traditions”? And, therefore, how do the courts precisely define the latter clause?

Well, what about the deeply rooted rule in the nation’s history and traditions of only freeborn white men who own land as the only citizens legally permissible to vote. For example, the 15^th Amendment to the U.S. Constitution was ratified on February 3, 1870, allowing Black men the vote, though Jim Crow laws throughout the southern states overruled this guarantee.

Women were not granted the vote until the 19^th Amendment ratified on August 19, 1920, though Jim Crow laws, gerrymandering, and conservative state legislatures continue to restrict legal voting of women and men of color long into the next century.

The institution of slavery is also “deeply rooted in the nation’s history and traditions” and codified in the country’s founding document: the United States Constitutions” so-called “Three-Fifths” clause.

The “founding fathers” of the United States inscribed the social constructions of “race” not only to reinscribe and revalidate the institution of slavery — many of these “founders” themselves enslaved large numbers of kidnapped Africans — but they also wrote into the U.S. Constitution the so-called “three-fifths clause” counting enslaved Africans as equivalent to three-fifths of a full human being for census purposes.

Though Congress passed on January 31, 1865, and the President signed into law on December 6, 1865, the 13^th Amendment of the U.S. Constitution abolishing slavery, black lives continued not to matter relative to white lives through Reconstruction, the Jim Crow South, into the 20^th century CE, and beyond as we have clearly witnessed in the current spate of murders of black people by police officers.

Yes, racism in its many forms ever since Europeans first stepped onto this land has been “deeply rooted in the nation’s history and traditions.”

Couples of different races, in Loving v. Virginia, 1967, and same-sex couples in Obergefell v. Hodges, 2015,now have the legal right to marry as provided by the Due Process and the Equal Protection Clause of the Fourteenth Amendment of the Constitution.

Are these as unstable as Roe under state decisis? Or rather, are they now judicially constructed as “deeply rooted in the nation’s history and traditions.” Well, evidently not.

Justice Clarence Thomas, for example, argued in a concurring opinion in the Dobbs decision, that the Supreme Court “should reconsider” its past rulings codifying rights to contraception access, same-sex relationships from the 2003 Lawrence v. Texas decision, and marriage equality for same-sex couples.

In 2024, anti-transgender bills continue to be introduced in 45 states, and many have been passed by state legislatures across the country. These bills aim to prevent trans people from receiving basic healthcare, education, legal recognition, the right to use public facilities and play on sports teams, and basically, bar them from the right to publicly exist.

And no, laws to protect the civil and human rights of trans people are not “deeply rooted in the nation’s history and traditions.” Even though the coinage of the terms “trans” and “transgender” are relatively modern, trans people have existed possibly since the beginning of human existence across cultures and across long expanses of time.

“Lack of Prior Claim”

The Trump administration, while holding the White House in 2017, annulled federal guidelines issued the previous May by former President Barack Obama that authorized public school students use restrooms and other public facilities aligning with their gender identities. The Obama-era directive was based on the premise that the federal law banning sex discrimination in education, Title IX, covered gender identity as well.

Trump’s “justice” department under Jefferson Beauregard Sessions disputed this claim arguing instead that the issue should be decided separately within each state. But as we know, the invocation of “states’ rights” throughout our history has been nothing less than a codification of the state’s right to discriminate.

In her pioneer book, Homophobia: A Weapon of Sexism, Suzanne Pharr describes a series of elements she finds common to the multiple forms of oppression. Such elements include what she refers to as a “defined norm” and a “lack of prior claim,” among many others.

Pharr explains a “defined norm” as “…a standard of rightness and often of righteousness wherein all others are judged in relation to it. This norm must be backed up with institutional power, economic power, and both institutional and individual violence.”

Another way “the defined norm manages to maintain its power and control…” and kept exclusive is by what Pharr refers to as the element or system of “lack of prior claim.”

This, according to Pharr, “…means that if you weren’t there when the original document (the Constitution, for example) was written, or when the organization was first created, then you have no right to inclusion….Those who seek their rights, who seek inclusion, who seek to control their own lives instead of having their lives controlled are the people who fall outside the norm….They are the Other.”

In the original and unamended version of the U.S. Constitution, for example, since only European-heritage male land owners had the right to vote, all Others, including women and people of color (those outside the defined norm and who lacked prior claim) had to fight long and difficult battles against strong forces to gain access to the voting booth, often under the threat of and actual violence inflicted against them.

Some who continue to oppose marriage equality for same-sex couples claim that this would undermine the sanctity of marriage, and possibly lead to the destruction of society, often using religious sanctions as their justification.

For example, responding to Vermont’s Civil Unions legislation in 2000, Catholic Cardinal Bernard Law reflected the opinion of a number of New England Cardinals and Bishops:

“The Legislature of the State of Vermont, by passing the Civil Unions Bill [countering the defined norm and lack of prior claim], has attacked centuries of cultural and religious esteem for marriage between a man and a woman and has prepared the way for an attack on the well-being of society itself [by these Others].”

Similarly, Robert Lewis Dabney, Professor of Theology at Union Seminary in Virginia, warned: “What then, in the next place, will be the effect of this fundamental change [countering a lack of prior claim] when it shall be established? The obvious answer is, that it will destroy Christianity and civilization in America [by these Others who are outside the defined norm].”

Cardinal Law and Professor Dabney engaged in similar dire predictions, but, and here is the key, they are referring to two different events – the Cardinal referred to marriage for same-sex couples, Dabney, who lived from 1820-1898, referred to women’s suffrage — but they forewarned similar consequences: the destruction of the family and civilization itself.

Since those in power in the United States have excluded trans and intersex people from the category of “defined norms” by viewing trans and intersex people as the Other, and the founding national and institutional policy documents have likewise excluded trans and intersex peoples’ civil and human rights from a prior claim, a spate of state legislatures have either passed or have considered passing laws prohibiting trans (and by implication, intersex) people from entering public restroom facilities that conforms to their gender identities, but may differ from the sex assigned to them on their birth certificates.

North Carolina’s HB 2, for example, its Public Facilities Privacy & Security Act, also goes by its extended title, “An Act to Provide for Single-Sex Multiple Occupancy Bathroom and Changing Facilities in Schools and Public Agencies and to Create Statewide Consistency in Regulation of Employment and Public Accommodations.”

Republican Delegate Mark Cole of the Virginia House of Delegates proposed House Bill 663 that would require all people in public buildings, including schools, to use restrooms corresponding to their “correct anatomical sex.”

This bill, if passed, would have the effect of prohibiting trans and intersex people from going into the restroom facility matching their gender identities. The bill defines “anatomical sex” as “the physical condition of being male or female, which is determined by a person’s anatomy.” Referring to schools, the measure states:

“Local school boards shall develop and implement policies that require every school restroom, locker room, or shower room that is designated for use by a specific gender to solely be used by individuals whose anatomical sex matches such gender designation.” Violation carries a $50 penalty.

How would such a law be enforced? Civil rights advocate Tim Peacock argues:

“[A]dults would be required to inspect children’s genitals before they use the bathroom. This is what the conservative movement has devolved into: forcing children to allow adults to examine their genitals out of misplaced fear that transgender kids and adults might commit a hypothetical never-before-seen act of violence or sexual aggression (that would still be against the law with or without transgender protections).”

In Texas, a proposed bill, HR 2801, included a provision that would offer students $2,000 for reporting and claiming “mental anguish” for having to share restroom facilities with students of another assigned sex.

Members of the trans community often suffer the consequences of so many Others. Nearly every two days, a person is killed somewhere in the world for expressing gender nonconformity. The vast majority of murders are of trans women of color.

So, the draconian measures undertaken by state and local governments and by individuals against trans people and their civil and human rights directly and intricately connect with elements of oppression suffered by Others outside the defined norm who lack prior claim.

I am encouraged, however, by the simple but brave words of current Democratic Vice-Presidential candidate, Minnesota Governor, Tim Walz, when he told those who oppose the rights and liberties of others to “mind your own damn business.”

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Photo credit: iStock

This post was originally published on here