How a Court Decision Might Make Pending LGBT Legislation Obsolete

FILE- In this Aug. 23, 2007 file photo, a sign marks the entrance to a gender neutral restroom  at the University of Vermont
FILE- In this Aug. 23, 2007 file photo, a sign marks the entrance to a gender neutral restroom at the University of Vermont in Burlington, Vt. For opponents of transgender rights, a favorite line of attack is to oppose policies that would allow people to choose whether to use a men's or women's bathroom based on gender identity.(AP Photo/Toby Talbot, File)

On December 15, U.S. Federal Judge Dean Pregerson ruled that the line between gender and sexual orientation discrimination "does not exist." The ruling, addressing discrimination against a pair of lesbian basketball players at Pepperdine University, has the potential to put sexual orientation under the umbrella of established civil rights laws. Such a move might render stalled legislation on non-discrimination moot and provide a firmer legal basis for the advancement of both legal rights and social acceptance.

The ruling would give new momentum to a movement that at times still struggles to define both the distinctiveness and importance of LGBT discrimination. Specific flash-points arise in debates around "locker-room" rights such as transgender inclusive changing rooms and restrooms. Despite local victories, LGBT non-discrimination efforts on employment and housing have stalled in the face of a hostile congress. Instead of having to push against the most conservative congress in decades, non-discrimination advocates would now be able to rely on a category of "intermediate scrutiny" that has been recognized by the courts since 1976.Government agencies and cities are already using this new legal tool to enact sweeping regulations breaking down reliance gender stereotypes from the bathroom to the workplace. In short, it's a good thing that all the discrimination protections that apply to women would now apply to gay and transgender Americans.

The decision has clear social implications which make gay rights opponents' task more difficult. Conservatives hoped, in light of June's Supreme Court Obergefell ruling legalizing gay marriage, to characterize advances in gay rights as "inventions" of a new and nebulous legal category. Long-term, marriage traditionalists hope that if the public sees the ruling as "judicial activism" on sexual behavior, they can wage the same cultural war of attrition that has made them partially successful in shifting the public's opinion on abortion. Conservative Justice Antonin Scalia derided the Majority decision's legal rationale, which relied on a right to "self-definition" through marriage, as akin to "the mystical aphorisms of the fortune cookie." Ted Cruz argued for the removal of judges who "invented a constitutional right to same-sex marriage."

Even less partisan figures like law professor Stanley Fish warned a focus on the subjective "deep and profound convictions" of sexuality opens the door for a set of other groups to file discrimination claims, including polygamists. Op-eds in the New York Times defending the rights of those with inclinations toward pedophilia and articles in the Huffington Post covering those attracted to their relatives have not helped ease more traditional sectors of society concerned with a slippery-slope. This ruling would make all of those worries irrelevant as it would have no repercussions for other sexual practices that even moderate Americans might wish to prohibit. In 2014, marriage equality opponent Ryan T. Anderson went in circles at Stanford University pressing a gay questioner on the fairness of marriage rights for the questioner and his partner considering he did not concern himself with polygamy rights. Although Anderson's question itself was an evasion of the issue at hand (taxes), the questioner had difficulty providing a succinct distinction between his case and Anderson's hypothetical sexual minority. Shifting the ground from sexuality (a fluid category) to gender (a more concrete legal category) allows clear distinctions. The questioner could now even more easily paint Ryan Anderson's rhetoric as not a sophisticated disagreement on complex sexual identities, but nothing more than gender discrimination, a vestige of a repressive patriarchal society.

The Pepperdine case is not the first instance of a judge linking gender and sexual orientation. Chief Justice John Roberts asked the defendants in Obergefell's oral arguments to explain the difference between LGBT and gender discrimination in the context of marriage:

Counsel, I'm not sure it's necessary to get into sexual orientation to resolve the case. I mean, if Sue loves Joe and Tom loves Joe, Sue can marry him and Tom can't. And the difference is based upon their different sex. Why isn't that a straightforward question of sexual discrimination?

As Huffington Post columns have noted before, Roberts' reasoning above also puts the LGBT movement more clearly in the established line of civil rights marriage cases. Pregerson's reasoning rejected the claim that each gender had the right to marry persons of the opposite sex. In the same vein, Loving vs. Virginia, which struck down bans on interracial marriage rejected Virginia's argument that the ban applied to both blacks and whites. This clear civil rights genealogy might further erode African-Americans' continuing opposition to same-sex marriage.

Whether for advancement on transgender rights, an ability to bypass a tedious congressional process, or as a badge of the increasing historical importance and legal legitimacy of the gay rights movement's demands, this federal court ruling is historic. If upheld, it might even overshadow this summer's monumental decision since it protects gays both at the courthouse and in the workplace.

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