Despite Long Odds, Transgender Case Before Supreme Court Isn't 'Too Soon'

Whenever an American minority makes a big push for new rights, the same answer is always handed down: Stop. Hold on. Wait.

Pick your battles.

On Friday, the Supreme Court agreed to hear the case of Gavin Grimm, a transgender teenager who wants to use the school restroom matching his gender identity. The 4th Circuit Court of Appeals already ruled in Grimm's favor, but the Supreme Court suspended that decision until they could hear the case. The court, which is still working with only eight members since Justice Antonin Scalia's death, put off taking the case in previous conferences until this past weekend.

Bloomberg View's Noah Feldman wrote in a Monday op-ed that he supports Grimm's right to use the men's restroom. However, he argues that a Supreme Court case on transgender rights is "too soon" and that "attitudes on transgender rights also need time to evolve."

So ... stop. Hold on. Wait. Pick your battles.

Feldman is comparing this case with the decades-long buildup to Obergefell v. Hodges, which legalized same-sex marriage in the U.S. Apparently, trans rights in the U.S. need to undergo the same timeline to ease the justices, and American public opinion, into accepting what gender means to private individuals.

There are a few problems with that.

First, same-sex marriage opponents weren't sleeping at the wheel while the LGBT community waited on Obergefell. More than 30 states were passing constitutional amendments establishing marriage as a bond between one man and one woman. And to say Obergefell is a fait accompli is a little disingenuous when local judges still refuse to marry gay and lesbian couples.

Similarly, anti-trans legislators are set to start the same path of blocking trans rights as they did during the marriage fight. North Carolina's Gov. Pat McCrory is staking his state's economic prosperity and his own reelection chance on his HB 2 law attacking trans rights to bathrooms, changing rooms, and other facilities. Texas Lt. Gov. Dan Patrick is planning to introduce a similar anti-trans law, styling it as a "woman's privacy act." Much like the "defense of marriage" acts of pre-Obergefell days.

Sound familiar? What Feldman doesn't see--and what LGBT advocates do--is that we are at the beginning of another 20-year "dark age" for transgender rights. And we have the chance to stop it before it starts.

Second, a distinct sense of urgency separates gay and lesbian rights from transgender rights. Let's face it: Transgender people are some of the hardest hit in the queer community in terms of employment, health care, public safety, and freedom of expression. While gays and lesbians fight for rights, transgender people fight for survival--and for transgender women of color, that fight often ends in their deaths. Transgender people need to be heard in the highest court in the land, and they need to be heard now.

Third, while the Supreme Court seems like an extreme option at what Feldman sees as an early stage for transgender rights, who else is going to take up the issue? Congress can't advance the Equality Act. The next president will be in charge of the same Justice and Education departments that promulgated the sex discrimination policies and dragged everybody into district court in the first place. The states will bicker among themselves into a patchwork of regulations similar to the marriage amendments, and local school districts, like Grimm's, will grapple for some kind of direction.

Do I understand Feldman's caution? Yes. Am I completely confident the Supreme Court will come to the right decision in this case? No, I'm not. But the justice should hear it and they should hear it now. To invite the chance of widespread state legislation that forces transgender children and adults to live as second-class citizens for a generation before their rights are affirmed is irresponsible.

The Obergefell strategy worked. But we can do better. And we owe it to our transgender family to try.