Vol. 31 No. 7 (August 2021) pp. 118-122TRANSGENDER RIGHTS: FROM OBAMA TO TRUMP, By Susan Gluck Mezey. New York: Routledge, 2020. 221pp. Paperback $39.95 ISBN: 978-0-8153-5940-1.
Reviewed by Ashley Casale, Department of Women’s, Gender, and Sexuality Studies, University at Albany SUNY. Email: abcasale@albany.edu.
TRANSGENDER RIGHTS: FROM OBAMA TO TRUMP by Susan Gluck Mezey, is an expertly argued, thorough, and systematic analysis of the development and constraints of transgender rights in four domains: the workplace, schools, public facilities, and the Armed Services. Mezey’s central argument in this book is that the executive branch and the courts have been primarily responsible for securing (in the case of the Obama Administration) and erasing (in the case of the Trump Administration) transgender rights, with Congress being conspicuously absent. Mezey also highlights the ways in which the “T” in LGBT has largely been subsumed by focus on sexual orientation in most legislation. Mezey shows throughout this work that neglecting to specifically mention transgender people in LGBT rights discussions not only creates large problems when it comes to “what to do about those people,” but also effectively constitutes their erasure. Though she takes care to evaluate the actions of the Obama and Trump administrations and weigh their commitment to securing equal rights for transgender people, Mezey actually seeks to assess those same issues in the executive and judicial branches in the absence of congressional action. Mezey works systematically and clearly: each bolded chapter heading is labeled with the actions of Congress, the Obama Administration, the Trump Administration, and finally the courts. Self-reflective, she writes in the Preface that throughout her career, she operated under the erroneous assumption that policy gains and advances made for gay and lesbian people would also benefit trans people. She uses this book to correct that supposition. She also shows how easily transgender rights can be erased when there is only administrative (executive and judicial) support without congressional involvement: “The change in administrations underscores the transitory nature of administrative policymaking to secure rights for marginalized groups,” she states in the Preface (p. vii). Without congressional action and legislation, policies can easily be reversed—and Mezey gives us reasons to care about this throughout this thoughtful work.
Mezey begins by giving an overview of the rhetoric used and action taken by the Obama and Trump Administrations on transgender rights. The Obama Administration urged courts to interpret federal civil rights laws against discrimination based on “sex” broadly to include gender identity, ended the ban on transgender military service members, and advocated for equal rights in health care, veterans’ benefits, housing, family policies, employment, and education. The Trump Administration reversed most of the Obama Administration’s work, taking the opposite approach: Trump appointed cabinet and subcabinet members who were hostile and disrespectful towards transgender people and their rights (or denied their existence altogether), supported efforts to expand religious liberties at the expense of antidiscrimination policies, barred transgender individuals from the military (recruitment and current active duty), and urged the courts to interpret sex [*119] as not inclusive of gender identity in federal civil rights law, leaving transgender people unprotected. Presidential policy is made evident by language, Mezey shows: Obama was the first president to use the word ‘transgender’ in a presidential speech. He spoke passionately about protecting transgender rights as “the right thing to do.” Trump’s language was disingenuous even when it appeared supportive: he claimed to support the LGBTQ community during his campaign, but when pressed said “the party believes whatever you’re born, that’s the bathroom you use” (p. 5). Trump Administration officials made a variety of incendiary comments, including calling transgender people “crazy” and “creatures” (Charmaine Yoest, appointed Assistant Secretary for Public Affairs at HHS), “absurd” (Tom Price, appointed HHS Secretary) calling policies protecting transgender rights “the height of absurdity” (Ben Carson, appointed HUD Secretary), and saying “transgender is a disease” (Mark Green, nominee for Secretary of the Army). The Trump Administration sought to effectively erase transgender people by removing SOGI (sexual orientation and gender identity) subjects from national surveys and ordering federal agencies to refrain from using the word ‘transgender’ at all (p. 10). Mezey has researched what LGBTQ advocacy organizations had to say about the approaches of the two presidents and includes quotes from spokespeople at dozens of these organizations, just a few of which include GLSEN, GLAAD, National Center for Transgender Equality, HRC, and Lambda Legal Defense and Education Fund to situate her analysis, and they point clearly to advances for transgender people under the Obama Administration and strides backwards during the Trump Administration.
Following this brief overview of both administration’s policies, Mezey moves into ‘the transgender experience,’ a section which discusses RICHARDS V. U.S. TENNIS ASSOCIATION (1977), the U.S. Supreme Court case that initially put transgender people on the map, and the high-profile cases of Chelsea Manning and Caitlyn Jenner. Then Mezey moves to discuss those particularly vulnerable in the transgender community—low-income and people of color who are transgender and the disproportionate discrimination and violence they face. She discusses important factors such as lower household incomes, inability to find employment or receive promotions, housing discrimination, homelessness, and harassment and assault, including within homeless shelters. Then Mezey moves into a fascinating discussion of religious liberty vis-a-vis transgender rights, and the stances both Obama and Trump administrations took in dealing with this tension.
Discussing the workplace, the first of four arenas that this book considers in-depth, Mezey briefly touches upon Congress. The Employment Non-Discrimination Act (ENDA) that was first introduced in 1994 was the first attempt on the part of Congress to address equality for LGBT workers. The bill struggled, largely because of dispute about the inclusion of language on gender identity—the language that would include transgender workers. Mezey points out it was in fact progressive congressional representatives who were proponents of the bill that led gay/lesbian activists and organizations to oppose including the language of gender identity. The stakes were high and they felt the omission was necessary in order for ENDA to pass. Comparing Obama and Trump, Mezey notes that Obama signed Executive Order 13672 on July 21, 2014 which added gender identity as a protected classification in the federal civil service and for employees of federal contractors. He also signed EO 13673, which he meant “to bend that arc of justice just a little bit in a better direction,” and essentially enforce EO 13672. However, [*120] Trump nullified EO 13673, making Obama’s original EO virtually unenforceable. In examining the role of the courts, Mezey focuses on the struggle of defining the phrase “because of sex” in Title VII of the 1964 Civil Rights Act. This battle over language becomes a reoccurring theme in the book.
In Chapter 3, “Transgender Rights in Schools”, Mezey discusses the role of the school as an institution and the role of individual teachers in harming transgender youth. Citing Human Rights Watch, Mezey writes: “In addition to affecting their health, bathroom and locker room restrictions created unsafe conditions for transgender students, subjecting them to harassment, bullying, and even assault when forced to use the bathroom of the sex they were assigned at birth; many were disciplined by teachers who believed they used the ‘wrong’ bathroom” (p. 75). Part of what Mezey does so well throughout this book, and particularly in this chapter, is to compassionately highlight the emotional, psychological, and embodied effects of harassment and discrimination as it takes place on a spectrum. She contrasts this with the effects of signing an Executive Order or guaranteeing rights through a court decision, which do not put a stop to the harmful issues transgender people still face. Returning to the book’s major lesson (that the ‘T’ in LGBT will not always be a beneficiary of legislation and policy designed to improve the lives of those marginalized by sexual orientation alone), Mezey writes about the tendency of “subsuming transgender youth within the larger LGBT youth population” (p.76) and obscuring the data on high-stakes issues such as teen suicide in sexual minority groups (transgender youth are twice as likely as cisgender youth to attempt suicide or have suicidal ideations). Mezey leaves readers coming away from this book with a clear takeaway: the failure to name transgender individuals results in their erasure and creates more work for litigants who must parse out the application of legislation that failed to explicitly name an entire group in need of protection.
Chapter 4, “Transgender Rights in Public Facilities,” deals with bathroom use regulations. The Obama Administration quickly moved to withhold federal funds from North Carolina after the approval of HB 2, which barred transgender people from entering bathrooms in public offices (state or local) and universities unless their perceived gender identity matched that listed on their birth certificate, describing “the physical condition of being male or female, which is stated on the person’s birth certificate” (p. 119). Mezey shows that the Trump Administration exploited irrational fears about sexual assault (particularly of children) in public restrooms when there was no evidence of predators taking advantage of antidiscrimination laws based on gender identity to harm others and consistently pointed to ‘states’ rights’ instead of allowing federal government action. Finally, in Chapter 5, “Transgender Rights in the Armed Services’” Mezey again juxtaposes two administrations that could not possibly be more different: Obama ended ‘Don’t Ask Don’t Tell’, and lifted the ban on transgender military service members while Trump tweeted after only a year in office that “the United States Government will not accept or allow transgender individuals to serve in any capacity in the U.S. military” (p. 151). Suggesting that transgender people lacked “readiness and ability to fight, survive and win on the battlefield,” the Trump Administration in 2017 resorted to discriminatory gender essentialism (p. 149).
What Mezey does particularly well in this book is an intersectional analysis shedding light on which transgender people are most likely to be harmed. She [*121] writes, citing the Human Rights Campaign from 2016: “Violence against the transgender community, especially when directed against minority transgender women, arises from ‘the intersections of racism, sexism, homophobia, and transphobia [that] conspire to deprive them of employment, housing, healthcare and other necessities, barriers that make them vulnerable” (p. 24). Also, when she discusses higher rates of HIV among transgender people (4 times the rate of the general population) she notes that “the rate is even higher for transgender people of color” (p. 22). This is a common refrain throughout Mezey’s work, to which she returns often lest the reader forgets: intersectionality matters. Mezey provides a nuanced analysis in which she does not just lump all trans people into the same category or allow the most famous trans people (ie, Manning and Jenner) to be a stand in for all. She really wants the reader to come away with an understanding of the intersections of race/sex/class/ability/education that operate in trans lives and how that affects marginalization.
One area that could be explored more deeply is a feminist analysis of embodiment, which is the discipline and control of body as it relates to transgender people. Mezey could have particularly discussed how the military and public schools could be linked as sites where the discipline and punishment of transgender bodies take place as part of the production of patriotic, compliant bodies. This conflates duty and service to nation with violent masculinity and heteronormativity. Mezey’s analysis could benefit from Jasbir Puar’s (2007) discussion of homonationalism and homonormativity when dealing with the missing ‘T’ in LGBT (Puar asks, to paraphrase, if it has just become popular to support normative versions of ‘acceptable’ gay people, so long as they conform to other social expectations of socioeconomic status, gender identity and whiteness?). Mezey writes in the Preface, “On a personal note, I am puzzled about the energy devoted to efforts to undermine the rights of this small group of Americans who mostly want to be left alone and live their lives free from discrimination,” (p. vii) but this puzzlement points to a piece missing from her analysis: through a lens of gender, isn’t there a compelling vested interest for the power-holders in erasing the existence of transgender people? How do transgender identities threaten the “bigger picture” of normative gendered and racialized power structures?
TRANSGENDER RIGHTS: FROM OBAMA TO TRUMP is an important contribution to the legal scholarship on transgender rights and branches of government and asks readers to consider what it means when one powerful person (the president) can define the rights of an entire group. The book also calls to mind the popular meme: “Privilege is not having to worry about your human rights being up for grabs every 4 years.” What Mezey could not possibly have known, and what will have significant impact, is that Trump would lose the November 2020 presidential election and that former Vice President Joe Biden would take over the executive branch in January 2021. It is still very early to know, but how will the Biden-Harris administration reshape transgender rights? How well suited is Biden to bring back all the protections for transgender people that existed during the Obama Administration, and even further them? And how easily can this be undone once again if a hostile administration wins in 2024? Yet another piece Mezey could not have predicted is that history was made in November 2020 with the first transgender people being elected to state offices. Sarah McBride won the Delaware State Senate race. Taylor Small became the first openly transgender person to be elected to the Vermont legislature. Stephanie Byers won a seat in Kansas. Brianna [*122] Titone became Colorado’s first transgender legislator. As transgender people increasingly populate the legislative realm—if this spreads from state legislatures to Congress—the premise of this book may shift as Congress may become more involved in protecting transgender rights.
CASES:
RICHARDS V. U.S. TENNIS ASSN,. 93 MISC. 2d 713, (N.Y.Sup. Ct. 1977).
REFERENCES:
Puar, Jasbir. 2007. TERRORIST ASSEMBLAGES: HOMONATIONALISM IN QUEER TIMES. Durham: Duke University Press.
© Copyright 2021 by author, Ashley Casale.
