Trans Rights Are Human Rights

And they should never be put to a vote.

• It took President Lincoln’s Emancipation Proclamation and the Fourteenth Amendment to end slavery.
• It took the Nineteenth Amendment to give women the right to vote
• It took the Civil Rights Act of 1964 to end segregation.

None of them passed by referendums, all of them were passed by legislation. In Massachusetts the legislature passed protections for us and it really should never have gone to a referendum but for the first time in history our rights were confirmed by a referendum.

Transgender rights are constitutional rights
The Hill
By Julia Raifman
November 8, 2018

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.

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.
[…]
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.

Now the current administration has taken a view that people can be denied their rights because of the First Amendment and he has packed the courts with judges who also believe that.

The battle is going to be between the First Amendment and the Fourteenth Amendment.

The First Amendment prohibits the Congress from making a law "respecting an establishment of religion, or prohibiting the free exercise thereof"

The Fourteenth Amendment says “All persons born or naturalized in the United States, and subject to the jurisdiction there of, are citizens of the United States and of the State where in 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.”
[My emphasis]

So the question is if the practice of one’s religion denies a person of their “equal protection of the laws” which amendment has precedence?

In the past what was important was the neutrality the law. The American Bar Association had this to say about the subject…

The Free Exercise Clause does not create a right to avoid neutral, generally applicable laws. There is no First Amendment right to avoid the law that applies to every other actor. The Supreme Couart affirmed this principle in Employment Division v. Smith, 494 U.S. 872 (1990), often referred to as the “peyote decision.” This case involved drug counselors who were fired for using the illegal drug peyote and were lawfully denied unemployment compensation because of their drug use. Laws such as the one at issue in Smith, that apply to actions without reference to belief or religion, are constitutional. The case established that a neutral, generally applicable law does not violate the Free Exercise Clause even if the law burdens religious conduct. Religious believers are governed by the rule of law. This principle was first announced by the Supreme Court in Reynolds v. United States, 98 U.S. 145 (1878), which held that a member of the Church of Jesus Christ of Latter-day Saints did not have a free exercise defense to the anti-polygamy law.
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Despite the Court’s comprehensive analysis, Congress treated the decision as holding only that RFRA violated federalism, or states’ rights, and reenacted RFRA to apply solely to federal law. A constitutional challenge to RFRA solely as applied to federal law has not made its way to the Supreme Court. In Gonzales v. O Centro Espirita Benficiente Uniao do Vegetal, 546 U.S. 418 (2006), the Court upheld a preliminary injunction against federal drug laws for a religious group that uses a hallucinogenic tea during worship services, addressing the government’s lack of compelling interest in the uniform application of the Controlled Substances Act, and did not preclude individualized assessments of application.

Then there was the case where an Amish employer felt that he shouldn’t have to withhold Social Security tax for his employees.

SUPREME COURT ROUNDUP; AMISH MUST PAY SOCIAL SECURITY TAXES FOR THEIR EMPLOYEES
The New York Times
By Linda Greenhouse
February 24, 1982

The Supreme Court ruled unanimously today that members of the Old Order Amish Church who operate businesses must pay the Social Security and unemployment taxes required of all employers, despite their religious belief that paying the taxes is a sin.

The decision, written by Chief Justice Warren E. Burger, reversed a ruling by a Federal District Court in Pennsylvania. That court held that the Amish could not be forced to pay the taxes without violating their constitutional right to the free exercise of their religion.
[…]
He continued: ''The state may justify a limitation on religious liberty by showing that it is essential to accomplish an overriding governmental interest,'' and concluded that a strong Social Security System was such an interest. ''Mandatory participation is indispensable to the fiscal vitality'' of the system, he said.

The Amish, he noted, were not required either to ''enter into commercial activity'' by becoming employers, or to accept Social Security benefits.

Chief Justice Burger wrote: ''To maintain an organized society that guarantees religious freedom to a great variety of faiths requires that some religious practices yield to the common good.'

Then down in New Jersey, a church had a pavilion on the boardwalk that they rented out to the public including weddings. Well a lesbian couple wanted to rent it for their wedding and the church said no.

New Jersey Judge Rules Against Discriminating Methodist Pavilion
ThinkProgress
By Zack Ford
January 13, 2012

A New Jersey judge has ruled against a Methodist organization that refused to rent its boardwalk pavilion to a same-sex couple for a civil union ceremony, saying that it violated the Law Against Defamation (LAD) and it was appropriate for the state to revoke its tax-exempt status. Because religious conservatives so regularly refer to this incident as an example of LGBT rights “infringing” on “religious freedom,” it’s important to understand that this ruling has nothing to do with the organization’s religious freedoms.

The Ocean Grove Camp Meeting Association is a religious organization, and it does own the pavilion in question. But at the core of Judge Solomon Metzer’s decision is the fact that the pavilion’s tax-exempt status was not protected under a religious provision. In 1989, Ocean Grove applied for a Green Acres real-estate tax exemption, a New Jersey property subsidy for conservation or recreational purposes. One of the requirements to qualify for the exemption is that the property be “open for public use on an equal basis.” Thus, when Ocean Grove refused to allow a same-sex couple to utilize its pavilion, it was violating its agreement with the state of New Jersey:

As to “free exercise,” the LAD is a neutral law of general application designed to uncover and eradicate discrimination; it is not focused on or hostile to religion. To the contrary, it carves away exceptions on behalf of religious organizations… Respondent can rearrange Pavilion operations, as it has done, to avoid this clash with the LAD. It was not, however, free to promise equal access, to rent wedding space to heterosexual couples irrespective of their tradition, and then except these petitioners.

So in the past it all boiled down to if the law is a neutral law. But now the Supreme Court has justices who are religious conservatives and now it is anyone’s guess what they will do.