A Showdown Is Coming

[Editorial]

I don’t know when or where, but it will be in a Southern state, and it will involve a challenge by a Northern trans woman.

Somewhere, sometime soon, a trans woman is going to be arrested for using the bathroom. That arrest will trigger a court battle that could go all the way to the Supreme Court—potentially resulting in a ruling as significant as the Fugitive Slave Act of 1793.

The court battle will be about “states’ rights,” echoing the very issue that caused the Civil War.

The state of Connecticut lists me as “female” on my birth certificate.

States such as Texas, Oklahoma, Mississippi, and others have passed laws restricting bathroom use to individuals whose sex assigned at birth matches the facility’s designation.

And that, my friends, is where the clash is going to happen.

The U.S. Constitution’s Tenth Amendment states that any right not explicitly defined in the Constitution is reserved to the states. Nowhere does it grant the federal government the power to assign sex at birth. Therefore, it must be a state’s right. Again, the state of Connecticut says I am “female” on my birth certificate.

Article IV, Section 1 of the Constitution states: “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.”

The showdown will occur when a trans woman from Connecticut walks into a women’s bathroom in another state and is arrested. The rest will be legal history. It will make or break the trans community. Will we be able to travel freely across this nation without fear of arrest and imprisonment simply for being ourselves? Can one state control our very existence while directly contradicting another state that legally recognizes our self-identification?

The Fugitive Slave Act was the law that contributed to the start of the Civil War. It required free states to return escaped slaves to their owners. At the time, if a slave reached a “free state,” they were considered free. After the law passed, slave hunters came north to reclaim Black individuals, and the northern states resisted.

Now, we face a similar division. Northern states are saying, under our law, this person is female and this person is male. Southern states are asserting their own definitions of womanhood.

The showdown at High Noon will be: does a state’s right to define its citizens travel with them when they visit other states? And what authority does a birth certificate hold—does it define someone universally, or only within the state that issued it?

[/Editorial]