In our professional, as well as social lives, we have encountered a variety of restrooms around town. In courthouses, they are more likely to be clearly marked “Women” or “Men.” At smaller establishments around the city where real estate is at a premium, sometimes we are lucky to find a vaguely marked unisex lavatory behind a rickety door.
Despite a variety of restroom options, the one thing we are unlikely to encounter is an awkward or dangerous encounter with a transgender person. However, with the brewing controversy in North Carolina over the constitutional right of the state to dictate who shall use which restroom, you would think a bathroom break is one of the world’s most dangerous endeavors.
In 1977, Washington, D.C. adopted the Human Rights Act to make policy on a variety of equality issues. It did not include transgender persons…until 2006. Ten years ago, the city added a chapter titled “Compliance Rules and Regulations Regarding Gender Identity.” Chaos did not ensue in public restrooms despite a policy to allow transgender individuals to use the restroom of their choice.
In the ongoing bathroom rights saga, this week will mark the 20th anniversary of a Supreme Court decision which may prove strong precedent in the North Carolina showdown. In Romer v. Evans, the Court struck down a Colorado law which discriminated against the LGBT community. Relying on the Equal Protection Clause of the Fourteenth Amendment, the Court declared Colorado’s Proposition 2 unconstitutional on May 20, 1996.
Twenty years later, a subset of the LGBT community is under attack again. Like always, when any controversial issue arises in the courts, it is inevitably followed by a discussion of the Constitution – the legal basis governing all U.S. law since its inception. Argument against change is often raised by those who want the Constitution used to limit the rights of a certain class, like transgender persons.
Originalism is always a popular argument against change. Originalists contend that the Constitution must be interpreted in the context of the age when it was written. They argue that the Constitution’s meaning should not evolve to solve modern dilemmas that the framers may not have been able to comprehend in their era. (Though not defined until well after the signing of the Constitution, it is mathematically possible that any of the founding fathers may have crossed paths with a transgender colonist or Native American.)
In 2016, it would be a practical impossibility to revert to a strictly originalist interpretation of the Constitution. The rights of more than half the nation’s population would have to be rolled back to the eighteenth century. To deny recognition of fundamental rights to any future class of persons would be to say that civil rights cease to exist: gays should not have the right to marry; the disabled may not have accommodations; African Americans are not equal; women cannot vote; and the accused – well, if you think the prisons are full now…
The trans-population is simply the latest minority class in America to seek equal rights and protection under the broad umbrella of the United States Constitution. As a group, they are seeking the rights and privileges that each of us enjoy on a daily basis. In the eyes of the law, transgender men and women are just that – men and women. As such, they must be afforded the same protections given the non-transgender population.
To accommodate minority classes as they arise, the Constitution must evolve – regardless of what the framers were able to comprehend in the 1770s. As a guiding document to the law, the Constitution has already been evolving for almost 250 years.
The Constitution must not be employed to deny rights, but rather to extend them. It is unfortunate that it is still used as a weapon to attack equality, humanity, and what is right. In a 1925 address, Chief Justice Charles Evans Hughes said, “When we lose the right to be different, we lose the privilege to be free.”
Defense attorney Amato Sanita commented, “”Equal Rights for all is a pivotal component of our unique democracy and true freedom against persecution is the result.”
As a free country, we have made great strides in difference in the contexts of race, religion, creed, ability, and sex. As a society, are we willing to throw all that away over who uses which bathroom?
