Bench Memos

Law & the Courts

Transgenderism as a ‘Quasi-Suspect Class’?

In an order last week in Adkins v. City of New York, federal district judge Jed S. Rakoff ruled that “transgender people are a so-called ‘quasi-suspect class’” and that governmental treatment of people who identify as transgender must be subject to “intermediate” judicial scrutiny.

If Rakoff’s approach prevails, that would mean that he and other federal judges, in the supposed name of the Constitution, would be deciding such matters as whether boys who think they’re girls must be allowed to use the girls’ restrooms, locker rooms, and showers in public schools. And although I believe that such sex-designated facilities amply satisfy the intermediate-scrutiny standard, I have zero confidence that Rakoff and many other federal judges would reach the same conclusion.

The legal issue arose in a case involving an Occupy Wall Street protester who goes by the name of Justin Adkins. Rakoff states that Adkins “alleges that he was treated differently” from other arrested Occupy Wall Street protesters “because he is transgender.” Although Rakoff never stops to spell things out clearly, that evidently means that Adkins is a woman who thinks she’s a man.

Adkins alleges in her complaint that after being initially detained in a men’s cell, she was made to sit in a chair in an open area, next to a bathroom, where she was handcuffed to a rail for seven hours and denied food that other arrestees received. The treatment, she alleges, resulted in soreness in her arm and shoulder for a week.

Rakoff quickly disposes of Adkins’s claims that the alleged conduct constituted excessive force in violation of the Fourth Amendment or improper conditions of confinement in violation of the Fourteenth Amendment. But in addressing Adkins’s claim that her detention violated her rights under the Equal Protection Clause, Rakoff concludes that the Second Circuit’s holding in Windsor v. United States that “homosexuals constitute a quasi-suspect class” compels the same conclusion regarding transgender individuals. (See pp. 7-10.) On that basis, he denies the defendants’ motion to dismiss Adkins’s complaint and instead holds that further proceedings are necessary to address, under intermediate scrutiny, whether the government’s actual conduct (which might turn out to be different from what Adkins alleges) was “substantially related to an important government interest.”

As I noted three years ago in point 4 of my critique of the Second Circuit decision in Windsor, the panel majority raced through a one-sided analysis of the admittedly amorphous factors that the Supreme Court has concocted on the question of what counts as a “quasi-suspect class.” So that decision does give Rakoff (a notorious judicial activist) a lot of cover for his own even breezier treatment.

That said, Rakoff’s assessment seems very shaky. Here, for example, is the entirety of his analysis of the second factor:  

Second, transgender status bears no relation to ability to contribute to society. Some transgender people experience debilitating dysphoria while living as the gender they were assigned at birth, but this is the product of a long history of persecution forcing transgender people to live as those who they are not. The Court is not aware of any data or argument suggesting that a transgender person, simply by virtue of transgender status, is any less productive than any other member of society.

Rakoff tries here to distinguish sharply between transgender status and the “debilitating dysphoria” that “[s]ome transgender people experience.” (Gender dysphoria is the American Psychiatric Association’s new name for what it formerly called gender identity disorder). Without citing any authority, he blithely asserts that such dysphoria is solely “the product of a long history of persecution forcing transgender people to live as those who they are not.” That assertion would seem severely undercut by evidence that transgender individuals who undergo sex-reassignment surgery—those, to build on Rakoff’s phrase, who live as who they supposedly are—continue to suffer very high rates of mental distress. As Dr. Paul McHugh, a leading expert in the field for four decades, has observed:

The most thorough follow-up of sex-reassigned people—extending over thirty years and conducted in Sweden, where the culture is strongly supportive of the transgendered—documents their lifelong mental unrest. Ten to fifteen years after surgical reassignment, the suicide rate of those who had undergone sex-reassignment surgery rose to twenty times that of comparable peers.

For what it’s worth, the APA defines gender dysphoria as “a marked difference between the individual’s expressed/experienced gender and the gender others would assign him or her,” and it says that gender dysphoria “causes clinically significant distress or impairment in social, occupational, or other important areas of functioning.” So if, contrary to Rakoff’s assertion, gender dysphoria is indistinguishable from transgenderism itself, or if “clinically significant distress or impairment” is a natural (even if not inevitable) consequence of transgenderism, then his claim that “transgender status bears no relation to ability to contribute to society” collapses.

Rakoff’s claim, with respect to the fourth factor, that “transgender people are a politically powerless minority” also seems difficult to reconcile with the Obama administration’s robust support for the transgender cause. As Secretary of State John Kerry stated just days ago, “we stand with the transgender community in the struggle for the full recognition and protection of your human rights.” That doesn’t sound like “a politically powerless minority” to me. (Again, I acknowledge that the Second Circuit’s reasoning in Windsor on this factor is similarly sloppy.) 

The question whether individuals who identify as transgender must be treated according to their “gender identity” arises in countless contexts in federal and state institutions and programs: restrooms and showers, sports teams, and college dormitories, to name just a few. Rather than let the accountable officials work out customized and common-sense approaches in these various areas, are we really going to have federal judges impose their diktats via a generation of litigation?


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