“The selectivity about whom the Fourteenth Amendment ought to apply to is stunning,” said Khiara M. Bridges, professor at University of California at Berkeley School of Law. “It’s not demanded by the text of the Constitution at all. Instead, these are political choices that are being made, and they’re elevating certain individuals’ rights.”
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The recent Supreme Court arguments about Tennessee’s ban on gender-affirming care for adolescents underscored the selectivity in who gets to exercise Fourteenth Amendment rights. The conservative position in U.S. v. Skrmetti is that while parents typically get to argue a due process right to direct their children’s upbringing, that right does not extend to parenting that affirms their transgender child’s identity. Trans adolescents can’t access medical care that is legal for their cisgender peers, and Republicans claim this is a regulation, not discrimination based on sex. Under this interpretation, even trans and nonbinary adults could continue to see their rights diminished.
“This [incoming] administration would be interested in denying them health care and, if not criminalizing them, certainly banishing them from public spaces,” Bridges said. One conservative group says it will pursue a ban on federal insurance covering affirming treatments, akin to the Hyde Amendment for abortion.
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As far as immigrants are concerned, President-elect Trump has also said he wants to end birthright citizenship and start a mass deportation program, which would necessarily rope in U.S. citizens. While citizenship for people born on U.S. soil is written verbatim into the Fourteenth Amendment, conservatives have previewed an argument to gut it.
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Bridges said this country’s history of mass deportations is rife with evidence that legal residents will be caught up in the dragnet. Hundreds of thousands of U.S. citizens with Mexican ancestry were deported during the Great Depression under President Herbert Hoover. (His slogan was “American jobs for real Americans.”) President Dwight Eisenhower’s 1950s deportation regime also wrongly removed American citizens of Mexican descent.
“This wasn’t about undocumentedness, and this wasn’t about immigrants. This was about non-whiteness,” Bridges said. Under Trump 2.0, she said, the U.S. would once again be removing people from the U.S. because they are not white. “We’re talking about building camps, right? That’s where we are.”
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The groups of people whose Fourteenth Amendment rights to be recognized as full humans are under attack from Republicans are deeply connected to one another. “It’s an error to read these things separate from one another,” Bridges said, adding that the obsession with mass deportations is connected to the desire to end birthright citizenship, which are both tied to wanting to revert to traditional gender and family norms, and that’s linked to the interest in giving rights to fertilized eggs. “All of these things are part of the same project,” she said. “This is about whiteness and patriarchy. It’s about creating the U.S. as a nation for white men.”