February 18, 2020 Appellate Issues | Winter 2020

Recognizing Transgender Rights: How Federal and State Courts are Defining the Rights of Transgender Individuals

By Katherine S. Barrett Wiik

The 2019 AJEI Summit continued its commitment to highlighting legal issues relating to diverse communities with an energized and well-attended breakout session exploring current legal issues impacting transgender individuals. Transgender legal rights impact many in our communities. In 2016, nearly 1.4 million Americans identified as transgender, according to a report issued by the Williams Institute, a think tank based at UCLA School of Law, with adults aged 18-24 identifying as transgender at the highest rates. Younger generations are less likely to see gender identities as binary or immutable.

The panel included lawyers and advocates involved in the transgender rights movement, as well as a law professor with deep knowledge of these issues. The panelists were:

  • Attorney Sasha Buchert (she/hers) of Lambda Legal, in Washington, D.C., who presented her unique perspectives as a public interest litigator who litigates on behalf of transgender people as well as being an openly-transgender person and military veteran;
  • Casey Pick (she/hers) of the Trevor Project in Washington, D.C., who presented her experiences creating policy solutions and advocating for transgender young people;
  • University of Pennsylvania School of Law Professor Tobias Wolff (he/his), who provided helpful conceptual framing of transgender legal rights, and presented insights on the pending transgender rights case pending before the United States Supreme Court, R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission (hereinafter “Harris”), which was argued on October 8, 2019; and
  • CAL Executive board member and appellate partner at Best & Flanagan LLP, Katie Barrett Wiik (she/hers), who has served as pro bono counsel in two transgender healthcare discrimination cases in federal court, moderated the panel.

Because audience members arrived with different levels of knowledge on the topic, Sasha Buchert kicked off the panel discussion by presenting a “Transgender 101”[5] overview of terms and concepts relating to transgender legal issues. This introduction addressed foundational concepts of what it means to identify as transgender, as well as a high-level understanding of the modern science of gender. (Spoiler alert---gender is complicated!) Ms. Buchert also emphasized the inclusive “best practice” of offering one’s own preferred pronouns during social introductions or on name tags, which provides others with this helpful social information and avoids making assumptions about others’ gender identities. Providing pronouns preferences and respectfully asking others for their preferred pronouns intentionally creates space for individuals to self-identify and allows for individuals with non-binary (“they/them”) gender identities to flourish. Speaking specifically to the many appellate judges in the room, she suggested that each consider, “Would you honor the request of a plaintiff, defendant, or witness in a case before you who is transgender to be referred to in accordance with that person’s gender identity?” The panelists urged a resounding, “Yes.”

The discussion then turned to the Harris case pending before the U.S. Supreme Court, which will be decided by the end of June 2020. Casey Pick took the lead, explaining the facts and procedural history of the case. The idea that Title VII does protect transgender individuals from discrimination based upon their gender identitywhich the Sixth Circuit held below—because it is sex stereotyping, just as it was sex stereotyping for Ann Hopkins to have been denied partnership in her firm because she did not fit her male partners’ assumptions of what a woman should look like and act like. See Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). The panelists joked about the limited ability to read the tea leaves from oral argument, and chuckled about the fact that “the bathroom issue” came up during the argument. (The panelists wondered what exactly people are doing in bathrooms these days?!) There were some sighs about the question during the Harris argument about whether “social upheaval” would result from formal legal equality for transgender folks? (Unsurprisingly, the panelists uniformly suggested the clear answer is NO.)

Professor Tobias Wolff then took the lead, to discuss the religious refusal cases making their way through state and federal courts. In these instances, individuals, typically professing deeply-held Christian religious beliefs, argue that their free-exercise rights require that they be allowed to discriminate against LGBTQ individuals. Although the recent U.S. Supreme Court decision in the Masterpiece Cakeshop was a narrow victory for proponents of those seeking religious exemptions from antidiscrimination regulations, post-Masterpiece decisions from both state and federal courts have been trending in favor of more robust protections for those arguing that they should be free to provide goods and services to the public but retain the right to assert faith-based refusals to do business with LGBTQ individuals.

Ms. Buchert touched briefly upon some of the types of legal issues being litigated on behalf of transgender people relating to access to gender-affirming healthcare, which enables many trans people to more healthfully live in accordance with their gender identity. She also made the point, however, that while transgender people have some unique and specific healthcare needs, they also have nearly all the same healthcare needs as non-transgender (cis-gender) people do, but often face implicit biases as well as explicit hostilities when seeking to obtain those universally-human healthcare services. Litigation regarding transgender healthcare rights touches on all of the above.

The panel concluded by tackling several questions from the engaged audience. While this was the first full-length AJEI Summit panel dedicated to the legal issues relating to transgender Americans, the plethora of important topics on the issue, packed room, and invigorated audience suggest it should be replicated soon.

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Katherine S. Barrett Wiik

Katherine S. Barrett Wiik is a partner at Best & Flanagan LLP in Minneapolis, where she has a practice focused upon appeals and strategic motions. Katie is deeply committed to providing pro bono legal services. Working with the legal nonprofit Gender Justice, Katie was co-counsel for plaintiffs in Rumble v. Fairview Health Services and Emergency Physicians P.A. as well as Bradford v. Fairview Health Services, in which she represented transgender patients who alleged discrimination in accessing healthcare services in violation of Section 1557 of the Affordable Care Act and the Minnesota Human Rights Act. Katie serves on the Executive Board of the ABA’s Council of Appellate Lawyers, is a graduate of Harvard Law School, Queen’s University Belfast, and Macalester College, and is former law clerk to the Honorable Karen Nelson Moore of the U.S. Court of Appeals for the Sixth Circuit.