Transgender rights are constitutional rights

On Tuesday, Massachusetts voters upheld a 2016 law preventing transgender people from being turned away from services based on their gender identity. The 68-32 vote ensures that transgender people in Massachusetts will continue to enjoy the same rights afforded to the state’s other residents. 

But it never should have gotten to this point. That any minority population’s rights could be put to a vote, or subject to a patchwork of state laws, speaks to the need for the 116th Congress to pass a national policy upholding equal rights.

{mosads}Many viewed the 2015 Supreme Court decision making same-sex marriage legal throughout the United States as an indicator that lesbian, gay, bisexual and transgender (LGBT) people had fully equal rights. Three years later, the Trump administration has rolled back federal protections for LGBT people and 12 states have passed policies explicitly permitting unequal treatment of LGBT people.

In Kentucky and Kansas, youth can be turned away from participation in student organizations for being LGBT. In Alabama, Illinois, Mississippi and Tennessee, patients can be turned away by medical professionals for being LGBT — a policy that the Department of Health and Human Services seeks to implement nationwide. The Trump administration also reversed a federal policy preventing federal employees from being fired based on being LGBT and is considering a move to define gender as a biological condition determined at birth, despite medical professional consensus that gender is not biologically defined. 

These policies are in stark contrast to the protections guaranteed to all citizens in the fourteenth amendment to the United States Constitution, which states “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” The courts uphold equal rights with strict scrutiny for protected classes such as racial and ethnic minorities, who have been subject to historic discrimination based on immutable characteristics. 

Protection of life and liberty, of course, includes the protection of health. Yet it is clear that LGBT people still face health inequities linked to discrimination. Transgender people are eight times more likely to report a suicide attempt in their lifetime relative to cisgender people. Similarly, gay, lesbian and bisexual adolescents are nearly five times more likely to report a suicide attempt in the past year relative to their heterosexual peers. These inequities have been linked to stigma at the state, neighborhood, school, peer and family levels. 

Laws permitting the denial of services to LGBT people exacerbate existing health disparities. In a study of three of the first state policies permitting the denial of services to LGBT people, we found that such policies were linked to a 46 percent increase in the proportion of gay, lesbian and bisexual adults who reported mental distress.

In contrast, we found that gaining equal rights through state marriage equality policies was linked to a 14 percent reduction in gay, lesbian and bisexual adolescent suicide attempts, ahead of the 2015 Supreme Court decision making marriage equality legal throughout the country. 

While proponents of laws permitting unequal rights for LGBT people suggest that these laws are a matter of religious rights, there is no evidence that those who are religious are experiencing harm when LGBT people have equal rights. In contrast to the severe mental health disparities affecting those who are LGBT, those who are religious do not experience such disparities; in fact, those who are religious consistently report better mental health than those who are not. 

Massachusetts voters upheld the spirit and principles of the U.S. Constitution by voting that transgender people are equal people, who deserve equal rights. It should not have been up to Massachusetts voters to protect the well-being of a minority population.

Upholding the Constitution is a responsibility we entrust to the senators and representatives elected yesterday and in past years, who take an oath “to support and defend the Constitution of the United States.” The members of the 116th Congress should pass the The Equality Act to ensure that all of the people of the United States have permanently and universally equal rights.

Julia Raifman, ScD, is an assistant professor at the Boston University School of Public Health, where she conducts research on how social policies affect population health.