A court case has resulted in a victory for transgender rights. It rests upon what may seem to be an esoteric aspect of law but it has important consequences. This issue is what standard to use when an arm of government takes action that affect individuals. As Lyle Denniston explains, there are three levels of scrutiny that can be used.
There are various levels of such a test, ranging from the easiest to meet to the hardest. When the right involves a claim of equality, a law or policy that is said to violate that right is judged by one of three tests: the “rational basis” test, which is very easy to meet, and can be satisfied if there is any reasonable explanation for its passage; the “heightened scrutiny” test, which is not as easy to meet because a law or policy must be shown to have served an important public objective, and the “strict scrutiny” test, which is so demanding that a policy can almost never survive it; a policy put to that test must serve a compelling government interest, and be narrowly crafted to serve that interest. Race discrimination, for example, is always judged by that tough standard.
Clearly the higher the standard that a law or policy affecting a group must meet, the better the chance that the group can show that it is discriminatory and thus get legal redress.
Any discrimination based on race, religion, national origin, or alienage (the state of being a non-citizen who is a legal resident) are what are known as ‘suspect classes’ and automatically get strict scrutiny. Non-citizens who are undocumented immigrants get rational basis scrutiny. Gender, sexual orientation, and sexual identity have not been designated as suspect classes possibly because of the belief that there may be valid reasons for laws that apply differentially on those bases. The US Supreme Court has never explicitly stated what standard should be used for those three classes but at least when it comes to gender and sexual orientation it has been implicitly using a higher standard than rational basis.
This brings us to the case of Justin Adkins, a transgender man who sued the city of New York over the treatment meted out to him after he was arrested as part of the Occupy protest movement. Lawyer Arthur Leonard describes what happened to him.
Justin Adkins was arrested on the Brooklyn Bridge on October 1, 2011. He was taken to the 90th Precinct and placed in a cell with other men. Although neither Adkins nor the other men in the cell raised any complaint about his presence, he was removed from the cell after police officers identified him as transgender, seated in a chair next to the bathroom, and handcuffed to a metal rail along the wall, where he was left for seven hours. Other detainees were fed, but he was not. He alleges that being restrained in that awkward position for so long caused soreness in his arm and shoulder that lasted for several weeks. He ultimately was released without being prosecuted.
Adkins leveled a barrage of constitutional claims against the police officers responsible for this treatment and the City as their employer. The City moved to dismiss his lawsuit. Judge Rakoff dismissed most of the claims in summary fashion, but he found that the Equal Protection claim had enough merit to survive the City’s motion.
As Leonard writes, New York District Court judge Jed Rakoff ruled in the case Adkins v. City of New York that a transgender person’s equal protection claim will receive “heightened scrutiny”. This is an important step because although the merits of Adkins’s case have not yet been decided, it gives transgender men and women greater chance of legal redress if they feel they have been singled out for discriminatory treatment.
In his ruling that you can read here, Rakoff applied four criteria that the Second Circuit Court of Appeals had used in its ruling on the Windsor case to determine that gay people constituted a ‘quasi-suspect’ class that called for some level of heightened scrutiny in their case. Rakoff said that although transgender and gay people did not face identical social pressures, there were broad similarities.
The first of the four criteria was whether there was “a history of persecution and discrimination based on membership in the class” and there clearly was.
The second factor is whether the status in question bears any relation to the ability to contribute to society. If for example, belong to a class prevents a person from functioning in society, that might be a reason for discriminatory treatment. But the court said that there is no evidence to suggest that transgender people cannot function just as effectively in society as any other group.
The third factor is whether membership of the class “is a sufficiently discernible characteristic to define a discrete minority class” and judge Rakoff ruled that being transgender was. As he said, apart from the everyday hassles about what gender to put in documents, “transgender people often face backlash in everyday life when their status is discovered. For instance, plaintiff alleges that, upon learning that he was transgender, police officers gawked and giggled at him and asked him what he had ‘down there.’”
Finally, there is the question whether that class constitutes “a politically powerless minority” and transgender people clearly are.
Using these four criteria, Rakoff concluded that heightened scrutiny applied to cases involving discrimination based on transgender status.
This does not mean that Adkins has won. That case still has to be adjudicated on the merits. But the requirement of heightened scrutiny does mean that the legal hurdles that transgender people need to overcome in challenging discrimination is reduced and that is an important step forward.