Ginsburg, Barrett, and why this election matters

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Photo: Amy Coney Barrett speaking in the Rose Garden on Sept. 26.

The presidency isn’t just about the president. That is, while the President of the United States does serve as the head of state and their policy ideas largely set the tone for the country, they also are the head of a sizable administration. Every department, as well as the vice president’s office, is able to set policy that will affect the course of the administration.

In the last few decades, this has very much been the case. Under George W. Bush, the Office of the Vice President, Dick Cheney, was a powerful one. Sometimes, it felt more like Cheney was in charge of things, versus President Bush. 

During the Obama years, too, Vice President Biden often wielded a lot of executive power. On many controversial topics, such as transgender rights, it was Biden who would “test the waters,” pushing the conversation forward in ways the president could not. Further, many other departments pressed on rights issues independently of the president, such as the Department of Education pushing guidelines for trans students, or the Department of Housing and Urban Development pressing for trans-friendly shelter policies.

Of course, Donald Trump’s presidency has largely been dedicated to rolling back every good that occurred in the Obama presidency, including transgender rights. While Trump has also been much more at the forefront of his administration versus some of his predecessors, it is very clear that it is religious conservatives like Vice President Mike Pence and individuals like Roger Severino are far more involved in anti-trans policies than Trump. 

Yes, this in spite of the fact that it was Donald Trump himself, via a tweet, who began a ban on transgender members of the military.

The Administration is but one of three supposedly equal branches of government, though you’d be hard pressed to tell that from the current makeup of congress plus the current status of our judiciary. The latter is where it gets murkier.

With a Senate that has largely served to rubber stamp right-wing judges recommended by the White House, the makeup of the courts has grown increasingly conservative. This has been in play in the Supreme Court as well, with Neil Gorsuch being given the seat that was expected to go to Merrick Garland under President Obama, and with the appointment of Brett Kavanaugh.

The Supreme Court is a big deal. While a presidential administration may only serve for a maximum of eight years, a Supreme Court appointment is for life. One could serve for decades, having a hand in shaping the interpretation of the lows of this country for generations.

Such was the case with Ruth Bader Ginsburg. 

Appointed to the court in 1993 by President Clinton, Ginsburg presided over the court for two and a half decades, putting a stamp on many of the court’s biggest rulings. That said, she had very few chances to be a part of many specifically trans focused cases.

She was part of a 9-0 decision in 1994, Farmer v. Brennan. While the case was primarily focused on prison rights, that Dee Farmer was a trans woman and was sent to a high security facility where she faced sexual assault is highly relevant to the case.

Then there was Doe v. Boyertown Area School District. In 2019, the Supreme Court declined to hear that case, keeping in place a 3rd Circuit decision that Title IX applied to transgender students and use of gender-specific facilities.

Finally, she was part of Bostock v. Clayton County. In a 6-3 decision, with Ginsburg siding with the plaintiff, the court found that discrimination based on sexual orientation or gender identity is part of discrimination “because of sex” under Title VII. It’s a ruling whose repercussions are still being felt.

While the number of trans-specific cases Ginsburg was a part of is relatively small, her part in them is important. Add to that her voice in so many gender, LGB rights, and other cases that have repercussions in trans lives, and her importance is clear.

Ruth Bader Ginsburg passed away recently, giving the Trump Administration, especially the religious conservatives, a chance to move the Supreme Court to the hard right for some time. In doing so, Trump nominated Amy Coney Barrett.

Unlike Ginsburg, Barrett is a hard right voice. As just one example — as she has a very short judicial career to examine — Barrett has argued against transgender rights under Title IX, the very thing that was addressed in Doe v. Boyertown Area School District, going so far as to refer to trans women as “physiological males.”

Under Ginsburg, we saw a big Title VII win in Bostock v. Clayton County, but a Supreme Court with Barrett would certainly attempt to do end runs around that decision in the name of religious freedom. I would go so far as to assume she would do all she could from the bench to roll back even the slightest victory trans and LGBTQ people have had. 

Her nomination has been thrown into a bit of chaos thanks to COVID-19, but it is still plenty possible that she could end up on the Supreme Court prior to the election.

Under Donald Trump, his administration has pushed hard for the demolition of transgender rights. Barrett may well make that happen. 

This is why the 2016 election mattered, and this is why the 2020 election is all the more important.  

Gwen Smith just wants to live her live as the woman she is. You can find her at www.gwensmith.com