By Chase Strangio

During oral arguments in the Supreme Court case United States v. Skrmetti last December, Justice Amy Coney Barrett asked then-Solicitor General Elizabeth Prelogar whether there has been a history of discrimination against transgender people. The answer seemed obvious. Anti-trans discrimination is well-documented. At least for trans people, the instinctive response to Justice Barrett’s question is, “Look around.”

But what Justice Barrett was asking specifically, is whether there is a history of de jure—meaning explicit, government sanctioned—discrimination against transgender people. “At least as far as I can think of, we don't have a history of de jure, or that I know of, we don't have a history of de jure discrimination against transgender people, right?” Justice Barrett asked.

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As legal historian Kate Redburn has documented, throughout the twentieth century, local ordinances across the country threatened people who defied gender norms with prosecution and even prison sentences. Some even required people whose appearances did not match their sex assignment to wear badges visibly declaring their birth sex—a precursor to President Donald Trump’s own policy for transgender passport holders. These laws, in essence, made it a crime to be trans in public and equated trans existence with deviance in ways that legitimized decades of public and private discrimination.

Decades of criminalization harmed trans communities who were forced to the margins of society. Generations of trans elders died prematurely because of this history, which also now fuels the insidious myth that transgender people are “new.” The irony is that in order to avoid further discrimination, we must convince the Court that this discrimination occurred in the first place—and that it still occurs today. 

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Let’s say the Supreme Court decides that transgender people have not suffered a sufficiently long or sufficiently clear history of discrimination to warrant heightened scrutiny. That would set a chilling precedent for when the government decides to target a small and politically unpopular group for discrimination.

We are getting dangerously close to making it a crime to exist as a transgender person in the United States. If that does not trigger scrutiny by the courts, then what will it signal to government leaders who are looking for groups of people to blame for social, political, and economic conditions?

As Justice Sotomayor noted at the Skrmetti arguments, “When you're 1% of the population, or less, [it’s] very hard to see how the democratic process is going to protect you.” That is abundantly clear right now.