How Obama Became the Trans-Rights President
While everyone focused on same-sex marriage, the administration moved to ensure the rights of all LGBT people. The right wing has already lost.
This week was easily the most significant in the history of transgender rights.
In five short days, the federal government came down hard on North Carolina for its prohibitive “bathroom law,” declared that all transgender students in the country should be allowed to use the facilities they wish, and barred health-care providers from excluding transition-related care. For LGBT advocates who have been pushing for these changes for decades, it was an exhilarating and heady series of victories.
But they didn’t happen overnight. In fact, the Obama administration has been quietly moving transgender rights forward for years. Before the struggle for same-sex marriage was even over, federal agencies and departments were bolstering protections for transgender people, piece by piece. Each of this week’s wins can be traced back to an earlier policy.
First, Attorney General Loretta Lynch on Monday delivered a moving address as she announced a federal lawsuit against North Carolina over HB 2, the controversial state law that requires transgender people to use bathrooms matching their birth certificates—and wipes out all local non-discrimination ordinances for LGBT people. Her speech was unprecedented in its full-throated support of transgender equality.
“The entire Obama administration wants you to know that we see you, we stand with you, and we will do everything we can to protect you going forward,” she said to the transgender community.
Then, early Friday, the Department of Justice and the Department of Education sent a directive to all U.S. school districts, advising them that transgender students should be allowed to use bathrooms consistent with their gender identity, rather than the gender they were assigned at birth. That announcement comes amidst nationwide debates at the district-level about accommodations for trans students.
And later Friday morning, while anti-transgender forces were already down for the count, the Department of Health and Human Services announced in a new rule that health-care providers who receive federal funding cannot deny transition-related care. Many private health insurance plans exclude hormone therapy and surgery; now, that practice is considered illegal.
But all three of these major victories have precedents that stretch back years.
The Obama administration’s stance on transgender students in bathrooms is nothing new. All the way back in April 2014, the Department of Education announced that transgender students were protected under Title IX’s prohibition of sex discrimination. Fast forward to the present day and Title IX is part of the DoJ’s justification for suing the state of North Carolina over HB 2.
The groundwork for Friday’s transgender health-care rule was laid almost four years ago. In August 2012, the Department of Health and Human Services announced that it would interpret discrimination on the basis of transgender status as a form of sex discrimination. In 2015, the HHS issued a proposed rule along those lines. Friday’s final rule is the logical conclusion of these more gradual reforms.
In fact, the Obama administration was advancing transgender rights two years into his first term, long before they exploded into the mainstream by way of the bathroom debate, with all of its many myths about privacy and public safety.
In June 2010, years before either President Obama or Secretary of State Hillary Clinton expressed public support for same-sex marriage, the State Department began allowing transgender people to change gender markers on passports with a physician’s certification that they had received “appropriate clinical treatment for gender transition” rather than proof of sex reassignment surgery. This paved the way for other government agencies to change their policies around identification for transgender people. The Social Security Administration, for example, followed suit three years later.
And in July 2010, the Department of Housing and Urban Development opened the door for transgender people to file federal housing discrimination complaints by announcing that they would now be covered under the Fair Housing Act’s ban on “gender discrimination.”
The reforms have continued straight through the president’s final term. One of the most notable came in June 2014, when the president signed an executive order prohibiting anti-LGBT discrimination among federal contractors. Most states still do not prohibit employers from firing someone because they are gay or transgender.
There have been cascading court victories over the years, too, along with little touches from the Obama administration: the hiring of the first openly transgender White House staffer; a gender-neutral bathroom in the Eisenhower Executive Office Building; Vice President Biden calling the current fight the “civil rights issue of our time” in 2012; Obama saying the word “transgender” for the first time in a State of the Union address.
Obama himself hasn’t always been front and center on the issue but LGBT advocates are keenly aware of his influence.
“He has been the best president for transgender rights and nobody else is in second place,” Mara Keisling, executive director of the National Center for Transgender Equality (NCTE), once told CBS News.
In short, this week’s three transgender victories in Washington were the culmination of years worth of work, not the opening shots of a war to come.
Of course, those just tuning into the debate now because of North Carolina or Target or your uncle’s Facebook page might be expecting a struggle similar in length to the protracted same-sex marriage debate. And, as Jay Michaelson observed in The Daily Beast, the Christian Right is certainly digging in, however hopelessly, for an extended battle over religious freedom and transgender people.
But even if a Republican takes the Oval Office in November and reverses many of Obama’s executive orders, public opinion has already fallen in line with his administration’s policies.
A new CNN/ORC poll found that 57 percent of Americans oppose restrictions on transgender bathroom use while only 38 percent support them. An even more impressive 75 percent support protections for transgender people in employment, housing, and public accommodations. As The Daily Beast’s Michael Tomasky wrote, “America’s mind is made up on the question.”
For comparison, Gallup polling shows that, shortly before the Supreme Court handed down the Obergefell v. Hodges decision in June 2015, public opinion on the legalization same-sex marriage was 60 percent in favor, 37 percent opposed. Those numbers are almost identical to the current polling on transgender bathroom laws like North Carolina’s HB 2. And with no proof that transgender bathroom protections will lead to an increase in sexual assault, it’s unlikely that public opinion will swing back toward 50-50.
On Monday, after telling the transgender community, “We see you,” Loretta Lynch made another statement that was all the more powerful for its subtlety: “This country was founded on a promise of equal rights for all, and we have always managed to move closer to that promise, little by little, one day at a time.”
The Obama administration has been doing exactly that for years—moving little by little on transgender equality. The far right may be gearing up for another culture war, this time on transgender people, but they lost the war before it even started.