Why are conservatives blaming progressives for changes in trans rights?

August 2, 2021 Why are conservatives blaming progressives for changes in trans rights?

[This post originally appeared as an op-ed in the Roanoke Times on July 24 under the title “Gavaler: Transgender issue isn’t left. vs. right”.]

Last month, the Supreme Court let stand a lower court’s decision to allow trans students to use restrooms that correspond with their gender identities. The case was from Gloucester County, Virginia, where the school board had instead created a small number of single-person restrooms for trans students, while still barring them from facilities that didn’t correspond with their biological sex. The Fourth Circuit Court declared that policy unconstitutional, and the Supreme Court agreed when it voted 7-2 to decline hearing the school board’s final appeal.

All three of Donald Trump’s conservative appointees—Justices Gorsuch, Kavanaugh, and Barrett—voted with the majority. That means they agree that trans students should be allowed to use their preferred restrooms. Did Trump pack the Supreme Court with radical leftists? Obviously not. As Senate Majority Leader, Mitch McConnell orchestrated one of the most ideologically lopsided Courts in the history of our country, barring two-term President Obama from making any appointments, while giving his one-term successor three. 

Yet the McConnell-Trump Court also backed trans rights in 2020, when it ruled that the 1964 Civil Rights Act protects gay and trans employees from discrimination based on sex. Justice Gorsuch, Trump’s first appointee, wrote the majority opinion: “Today we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear.”

But instead of attacking the Republican-appointed Supreme Court for this new status quo, many conservatives blame Democrats. Last year, the Democratic-controlled Virginia Legislature passed a law requiring “the Department of Education to develop and make available to each school board model policies concerning the treatment of transgender students.” This year those model policies specify that students “should be allowed to use the facility that corresponds to their gender identity.”

Some conservatives call that policy pro-pedophilia and label anyone who agrees with it a pedophile. Unless they are Supreme Court justices appointed by a Republican president.

Now, since our conservative-packed Supreme Court has made explicit that barring trans students from their preferred restrooms is unconstitutional, Virginia, like every other state in the nation, will have to do more than just “make available” “model policies.” Trans rights are now undisputed law. For a school to disregard federal law is not only illegal but also a trigger for lawsuits with an insurmountable legal precedent. The Gloucester County school board lost all of its appeals, and now so will every other school board that violates trans rights.

But don’t blame progressives. Blame Trump and McConnell. Or maybe when a hyper-conservative Supreme Court doubles down on the rights of trans people, it’s time to accept that trans people are just people?

The problem isn’t that the radical left is taking over the country. The problem is an unwillingness to let go of a past wrong. It used to be considered okay to openly ridicule and discriminate against trans people. It also used to be okay to openly ridicule and discriminate against gay people. If you grew up with those norms, they may still seem normal and reasonable—even when some of the most conservative judges in the country say otherwise.

Gorsuch, Kavanaugh, and Barrett recognize that earlier anti-trans bigotry was wrong. They recognize that fact while also remaining firmly conservative. It’s not a struggle between left and right. Go back fifty years, and progressives of the 1970s were certainly not advocates for trans rights either. They were generally as bigoted toward trans people as everyone else. What’s happened now is the recognition of trans rights across the political spectrum. It’s a shared American victory we should celebrate together.

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