Writing a Different Story for Trans Rights

"Let us write a different story this time," U.S. Attorney General Loretta Lynch urged at her press conference this month, announcing the Department of Justice's lawsuit to strike down House Bill 2, the notorious anti-LGBT law enacted by the North Carolina legislature in March. Her remarks have been justly celebrated for their simple, compelling declaration that transgender rights are civil rights, period.

As we look back on the past month's developments, which include the Obama administration's issuance of national guidelines against anti-transgender discrimination in schools and the president's own pronouncement that "righteous anger" against such discrimination must be augmented by concrete action, it is worth reflecting on the challenge the attorney general has set for the nation with her memorable words.

Lynch made her case with eloquent conciseness. Laws forbidding people to use facilities corresponding to their gender identity are nothing more than "state-sponsored discrimination against transgender individuals, who simply seek to engage in the most private of functions in a place of safety and security -- a right taken for granted by most of us."

Such laws convert the most banal aspects of daily life into a source of intense distress and trauma for transgender people, making it an ordeal to even go out in public. This is why, as Lynch observed, the Justice Department's action "is about a great deal more than just bathrooms. This is about the dignity and respect we accord our fellow citizens and the laws that we, as a people and as a country, have enacted to protect them -- indeed, to protect all of us."

Lynch rightly sees laws like HB 2 and the hostility it expresses toward transgender citizens as the latest chapter in the long struggle over equality for all Americans. As she reminded us, "This is not the first time that we have seen discriminatory responses to historic moments of progress for our nation. We saw it in the Jim Crow laws that followed the Emancipation Proclamation. We saw it in fierce and widespread resistance to Brown v. Board of Education."

The comparison to racial segregation is particularly powerful coming from our first black woman attorney general, whose own humanity once would have been denied by the "whites only" bathroom laws of her parents' generation. She understands as well as anyone the stigma, the badge of inferiority, such laws are designed to inflict on human beings. And she knows, as Dr. Martin Luther King once said, that injustice knows no boundaries, that no society is safe if some of its members are oppressed.

She called out the dishonesty of the proponents of these transphobic laws who, like their predecessors from the Jim Crow era, hide behind the puppet show of protecting women and children from imaginary harm. "You've been told," she said, "that this law protects vulnerable populations from harm -- but that just is not the case. Instead, what this law does is inflict further indignity on a population that has already suffered far more than its fair share."

There has not been a single recorded incident of a transgender person assaulting anyone in a public restroom, and the evidence shows that providing legal protection to trans people in public accommodations does not increase the safety risk in these spaces. Meanwhile, transgender Americans are assaulted, raped, and murdered at epidemic rates and face poverty, depression, and unemployment levels that would be intolerable among the general population. These facts do not matter to the bigots, just as facts did not matter to the proponents of racial apartheid, who concocted absurd fantasies about the dangers posed by the people they were intent on victimizing.

Lynch made clear that the sordid history of racial segregation must not be repeated here. "We have moved beyond those dark days, but not without pain and suffering and an ongoing fight to keep moving forward. Let us write a different story this time." Her appeal raises the central question in the struggle for transgender rights: How can we get state legislatures to act, in Lynch's words, not "out of fear and misunderstanding, but out of the values of inclusion, diversity and regard for all that make our country great"?

Writing a different story this time means, above all, taking immediate, forceful action, rather than waiting for states to gradually come around to the idea of trans equality. There is little doubt that transgender Americans will eventually enjoy legal protection against discrimination. The question is whether we will secure it "with all deliberate speed," to recall the notorious gradualist formula for school desegregation, or will instead adopt a "zero tolerance" policy toward transgender discrimination, without excuses or foot dragging.

The enforcement action filed against North Carolina last week, coupled with the antidiscrimination directive sent to the nation's schools, is a promising step in the direction of zero tolerance. The lawsuit should be accompanied by the immediate suspension of the $4 billion in federal education subsidies the state receives. The administration must make an example of North Carolina, teaching it and other states a simple lesson: American taxpayers do not subsidize discrimination, ever.

The administration's actions have prompted a predictable backlash, with opportunistic politicians and hate group leaders promising massive resistance. This reactionary invocation of "segregation now, segregation forever" must be met not with conciliatory gestures, but with an overwhelming application of legal and economic sanctions against states that heed the bigots. State governors and legislators, and the voters who elect them, must be made to understand that the civil rights of transgender children are nonnegotiable, and that their violation carries a heavy price, payable immediately.

American corporations should be sending the message that they do not subsidize discrimination either. Few things concentrate a state's mind more than the prospect of job losses and a vanishing tax base. If more companies announced they were pulling their business from North Carolina, HB 2 would be repealed long before the Justice Department's case got to trial, and other states' leaders would avoid following that state's foolish example. If more companies proudly advertised trans-inclusive policies, the hateful boycott against Target for its own brave stand would fizzle out instantly. Entertainers and sports leagues should get off the fence and show they are on the right side of history.

The alternative to zero tolerance is a long, drawn-out war of attrition in which everyone loses except the opportunists and demagogues who thrive on social discord. As they did in the case of school desegregation, they will -- if given the opportunity -- build careers on frightening people with the imaginary dangers of trans equality, in state after state. It is far better to cut off their air supply early on, by equating their despicable counsel with financial ruin.

Writing a different story this time means, in short, making it in states' interest to do what is right, aligning their material fortunes with their legal obligations. The polls tell us that most people support transgender civil rights. But experience tells us that opportunists and demagogues are always ready to stoke people's fears and, in the attorney general's words, "invent a problem that doesn't exist as a pretext for discrimination and harassment." The best way to put them out of business is to make clear to everyone around them that they are very bad for business.

MISCHA HAIDER is a mother, trans activist, and a researcher at Harvard University. BRUCE HAY is a professor of law at Harvard University.