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What the Supreme Court vacancy means for transgender equality

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What does an unexpected Supreme Court vacancy mean for transgender people? A lot.

To date, the Supreme Court has decided just one case in which a party was openly transgender. That case, Farmer v. Brennan (1994), was brought by Dee Farmer against federal prison officials who allegedly failed to protect her from repeated sexual assaults. The court’s opinion (which avoided using any gender pronouns for Ms. Farmer) set a constitutional standard for claims of failure to protect prisoners and set the stage for subsequent efforts to stop prison rape.

Today, the courts face many legal issues regarding the rights and dignity of transgender people. These include: Is discrimination against LGBT people prohibited under federal sex discrimination laws? Is anti-trans discrimination subjected to heightened constitutional scrutiny? Is it unlawful to deny trans people equal access to public spaces consistent with their gender identity? Do trans people have a right to privacy concerning their trans status, and to ID documents that match who they are? Is expressing one’s gender identity through dress protected by the First Amendment? Do insurance policies that exclude medically necessary transition-related care unlawfully discriminate?

Lower courts and other legal authorities are pointing to “yes” on all these questions, and the Supreme Court may never need to decide them—however, with trans people increasingly seeking to vindicate their rights in court, it’s increasingly likely that the Supreme Court will hear another case involving a trans person in the coming years.

Moreover, it’s certain that by the court on the rights of privacy, liberty, equal protection, and free speech, individual rights during police encounters and in prisons, and the interpretation of our civil rights laws—whether or not parties to those cases are trans themselves— will profoundly affect the lives of transgender people. Indeed, cases already before the Supreme Court on access to medical care—such as Zubik v. Burwell, a case being argued next week that could determine whether employers can deny individuals access to contraception—will profoundly affect trans people’s access to care.

Today, President Obama nominated Chief Judge Merrick Garland of the U.S. Court of Appeals for the D.C. Circuit, to the Supreme Court. We hope the Senate, which confirmed Judge Garland in 1997, will act quickly on this nomination.

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