Good News and Bad News

Cara from The Curvature alerts us to the fact that earlier today, a federal court in Wisconsin issued an order invalidating a law that prohibited inmates from receiving hormone therapy as part of the suite of taxpayer-funded medical services provided in prisons.  You can read the order here, but it’s pretty terse.  Translated from judge-speak, here’s what the ruling held:

1. That the denial of hormone therapy, both in practice and in principle, violated the Eighth Amendment’s prohibition of cruel and unusual punishment because it amounted to a denial of the trans inmates’ serious medical needs;
2. That the denial of hormone therapy, both in practice and in principle, violated the Fourteenth Amendment’s equal protection of the laws clause;
3. That the denial of hormone therapy was not justified, as such violations often are, in courts minds, by a “rational basis” for the legislation.  In other words, the court said that the reason for the law didn’t justify the violation of the Constitution that it posed – and basically called the legislature irrational, in legal-speak.

Of course this will be appealed; apparently Wisconsin legislators are already using trans-hating language to rile up the state attorney general.  And to be honest, I’m not sure, on first impression, that #1 will stick.  This is a country whose courts aren’t sure if the death penalty constitutes cruel and unusual punishment, and in general Eighth Amendment case law isn’t encouraging in this vein, as my sort of surface-level knowledge has it.  There might be somebody in our readership who knows a little more about that… JD Regent?  Please phone home.

#2 and #3 are the biggest deals here, in my my quick, offhand opinion, as I’m typing this.  But they aren’t as positive as they might initially appear.

The court’s use of what’s called the “rational basis” standard of review here means that the court still didn’t consider trans people to be what’s called a “suspect class” under Fourteenth Amendment case law.  See, when you are a “suspect classification” – which gender is, and race is, but generally sexual preference and gender identity are not, yet, universally – you get to force the government to demonstrate not just that there is a “rational basis” for their discriminatory law, but usually have a somewhat higher standard – in the case of race, for example, the standard is “strict scrutiny.”  I don’t want to get too far into the arcane and frankly confusing subject of standards of review – my own country has only one and it makes things a damn sight easier – but the point is that usually, to become a suspect class, you have to convince courts you have some of the following: historic  discrimination, and/or have been subject to prejudice, hostility, and/or stigma, perhaps due, at least in part, to stereotypes; immutable and/or highly visible trait(s); and/or  powerlessness to protect themselves via the political process.  Sounds like trans people to me, dontcha think?  Pretty easy to make that showing, right?  And yet, here, we have a decision where a judge hasn’t used a higher standard, implying, yet again, that discrimination against trans people isn’t inherently a suspicious thing for a government to do.

The worst part of this is that on appeal, the attorney general is going to probably rely on that “rational basis” standard to persuade the appeals court that this judge didn’t rule properly.  The “rational basis” standard is notoriously deferential to government.*  While in principle I do completely agree that legislators who are not doctors making decisions about other people’s health is the definition of “irrational,” this is a country in which it is apparently totally kosher to do that in the context of abortion.  In fact I imagine that this is going to be the sort of sad underbelly for universal health care proponents – it’s now gonna be your local racist/sexist/ablist/transphobic congressman making decisions on what kind of treatment you need, and he’s gonna fight tooth and nail all the way to the Supreme Court each and every time for his right to deny you medical treatment.  All the while crying about scarce resources.

So what I’m saying here is that without wanting to oppose the perfect to the good, there are some things going on in this decision that aren’t getting at the real heart of the problem: namely that trans people are systematically discriminated against, and are generally powerless, and good goddamnit, it shouldn’t just be a matter of the legislature having its “reasons” in order to stomp all over them.

*I should note that in the landmark case of Lawrence v. Texas, the Supreme Court did in fact strike down the anti-sodomy laws on a rational basis standard of review.  But given that there was no “scarce resources” argument in that case, I’m not sure the same can hold true in the context of medicare cases.