Rep. Jayapal introduces Trans Bill of Rights

This legislation is ultimately a massive step forward. However, the passage and implementation of this bill would require a complete shift in the political landscape for it to take effect.

By Artemis T. Douglas and Jane Migliara Brigham

Yesterday, Feb. 11, Representative Jayapal introduced what she and others called a “Trans Bill of Rights” to the House of Representatives.  

The goal of the bill is to use the enforcement mechanisms from the 1964 Civil Rights Act to apply similar protections to trans people.  This would serve as the legal enforcement mechanism to enforce the equality that trans people were expected to gain from the Bostock decision.

It would do this by amending existing law (the 1964 Civil Rights Act) to include “gender identity and sex characteristics” as part of the legally protected class, or basis, of sex.

The resolution also has language to:

• end the genital mutilation of intersex infants, protect trans people- including trans kids- in schools and sports, 
• promote bodily autonomy in health decisions, codifying the rights to abortion and reproductive healthcare for all– including trans people, 
• protecting trans kids from being forcibly removed from affirming homes, 
• protecting health care providers who work in gender-affirming and abortion care from prosecution and harassment, 
• protecting manufacturers of gender affirming medical products from “specious consumer and medical fraud accusations”, 
• and other language aimed to protect and promote the rights and safety of all involved in abortion and transition medicine. 

However, this section– along with the rest of the bill, doesn’t provide new enforcement mechanisms and doesn’t authorize appropriations, so it is a largely toothless piece of legislation.

If passed, this wouldn’t provide funding to ensure its provisions and obligations are met, nor would it introduce new or enhanced penalties for those who violate trans people’s rights.

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While the bill is comprehensive in its scope, it runs into several problems. 

Firstly, it has no chance of being made into law until Republicans lose control in the House, Senate, and the White House. 

Even with a veto-proof Senate Democrat majority, the Senate Democrats haven’t voted as a block to override a veto since at least before President Clinton. More recently, Senate Democrats have overridden vetoes, but not when it would require every single one of them to vote the same way.

The most recent overruled veto in a Democratic majority Senate was when they overruled Trump’s veto of the military omnibus funding bill known as the National Defense Authorization Act. 

Democrats joined Republicans to overrule the veto of the 2021 NDAA towards the end of Trump’s first term as President.

There is no reason to expect this to happen until after the next general election and a new president is sworn in. Therefore, such a bill has no route to passage before 2029.

Secondly, it bases its right to protect trans people based on the basis that gender discrimination is a form of sex discrimination, similar to the finding of Bostock. 

The problem is that since last year, all three branches of government have shown to be hostile to this idea. 

As a result, the bill could be struck down for not being in line with more recent finding regarding sex discrimination, such as Skrmetti.

This legislation is ultimately a massive step forward. However, the passage and implementation of this bill would require a complete shift in the political landscape for it to take effect.

The bill also doesn’t account for how, in President Trump’s second term, the Civil Rights Act of 1964 has been weaponized as a weapon of blatant white supremacy, rather than a tool to promote equality and integration. 

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