End the duopoly

Transgender Americans are still waiting for legal equality

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A constitutional rule prohibiting transgender discrimination remains elusive. Credit: Getty Images/iStockphoto/arvitalya

In June, you’ll recall, the U.S. Supreme Court held that the Title VII prohibition on workplace discrimination “because of sex” covers transgender people. You might think that, as a result, this form of discrimination would now be more broadly illegal for the government or for people in many scenarios outside the office.

It turns out things aren’t that simple. Since the landmark ruling in Bostock v. Clayton County, President Donald Trump’s administration has enacted rules that allow discrimination against transgender people by hospitals and homeless shelters. And its ban on trans troops remains in place.

All this is possible because the Supreme Court’s opinion interpreted just one particular statute regarding the workplace. It wasn’t based on the U.S. Constitution. So there isn’t yet a recognized constitutional ban on government discrimination against transgender people.

Statutes that are similar or identical to Title VII ought to be interpreted to prohibit transgender discrimination. But that leaves room to debate what happens if a statute is different or where no statute applies.

In other words, we’re in one of those weird periods of time where some discrimination against a particular group has been rendered unlawful, while other […]

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