The Trump administration recently annulled federal guidelines issued last May by former President Barack Obama that authorized public school students to 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, and argued instead that the issue should be decided separately within each state. But as we know, the demand for “state’s rights” throughout our history has been nothing less than a codification for the state’s rights to discriminate.
On Monday, March 6, the U.S. Supreme Court announced that it would not hear the case of Gavin Grimm, a Virginia trans male high school student who has sued his school district for the right to enter school facilities corresponding with his gender identity. The Court’s decision vacates a lower court’s ruling in Grimm’s favor, and now the case goes back to the court of appeals for retrial.
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 as we know it.
The Church of Jesus Christ of Latter-Day Saints provides an example on the institutional level. LDS President, Brigham Young, instituted a policy on February 13, 1849, emanating from “divine revelation” and continuing until as recently as 1978 forbidding ordination of black men of African descent [outside the defined norm] from the ranks of LDS priesthood.
In addition, this policy prohibited black men and women of African descent from participating in the temple Endowment and sealings [lacking in prior claim], which the Church dictates as essential for the highest degree of salvation. The policy likewise restricted black people from attending or participating in temple marriages.
Young attributed this restriction to the so-called sin of Cain, Adam and Eve’s eldest son, who killed his brother Abel: “What chance is there for the redemption of the Negro? [lack of prior claim],” stated Young in 1849 following declaration of his restrictive policy. “The Lord had cursed Cain’s seed with blackness and prohibited them [the Others] from the Priesthood.”
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 and expressions, 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.”
Last year, 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.
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