Under current United States federal law, people that are members of a protected class become secured from discrimination. Protected classes include gender, race, nationality, religious orientation, age and disability. Sexual identity, sadly, is not considered a protected class under federal law, leaving transgender individuals lacking much needed legal protection from discrimination. This means they may be discriminated against when doing anything from applying for a job to renting an apartment.
But there is hope on the horizon as the State of New Hampshire recently passed a sweeping anti-discrimination bill protecting transgender individuals from discrimination in the areas of employment, housing and public accommodations.
The new legislation is a huge landmark in the fight for equal rights for all individuals regardless of which gender they identify as. Currently, 19 states afford protections stricter than the federal standard regarding prohibiting discrimination in public employment. However, the New Hampshire statute goes a step further in allowing protections from discrimination in public accommodation.
This comes at a time when other states such as North Carolina passed bills prohibiting people from using public bathrooms that did not match their biological gender out of a misguided fear that transgender men who identify as female would somehow imperil women and children while in the bathroom. North Carolina has since repealed major parts of the bill including the requirement that transgender individuals must use the bathroom matching their biological sex.
Following the passage of House Bill 1319 in New Hampshire, it goes to the governor’s desk to become law. Republican Governor Chris Sununu voiced support for the measure and is likely to sign the bill. As other New England states have already passed similar legislation, once Governor Sununu signs the bill, transgender individuals can travel freely anywhere in New England with the knowledge that they have equal protection under the law.
The measure also puts increasing pressure on federal lawmakers to add both sexual identity and gender identity as protected classes. The more states which grant equal rights to all regardless of gender identity, the greater the pressure on the federal government to change the law. If a case challenges the constitutionality of the state law, it could proceed to the Supreme Court.
Supreme Court Rulings
The Court decided on similar matters in the past. For example, in the 2015 case of Obergefell v. Hodges, the Supreme Court ruled that states could not keep same-sex couples from marrying and needed to recognize their unions.
However, with President Trump’s appointment of Supreme Court judge Neil Gorsuch, it is unclear if the court is willing to extend equal rights to transgender individuals through a ruling at the federal level. Justice Gorsuch has a history of ruling against extending equal protections for individuals based on gender and sexual identity.
It may well come down to a question of states’ rights versus federal rights if a Supreme court case comes to pass. That bodes well for transgender individuals seeking equal protection. In general, the Supremacy Clause says whenever a state law contradicts federal law, it is the federal law that prevails. However, this changed in recent years, both with Obergefell and with the lack of federal enforcement of the law prohibiting marijuana use in states with medical and/or recreational use laws.
For now, the New Hampshire ruling doesn’t extend true equal rights to all Americans regardless of gender or sexual identity, but it is a step in the right direction. And progress deserves to be celebrated, even as we persist in the fight for true equality for all.