Despite criticism of litigation-based strategies, courts have been central to the success of the Lesbian, Gay, Bisexual, Transgender, and Intersex (LGBTI) rights movement, especially the LGB movement, as represented by the judicial elimination of sodomy laws and the legalization of marriage equality. Critics of litigation to date, despite this success, have argued that the litigation strategy of the past several decades has focused mostly on more privileged elements of the movement, to the clear detriment of more marginalized groups, such as transgender and intersex individuals. Another line of critique is that litigations strategies cause backlash and discourage and marginalize more effective grassroots approaches. While any movement has limited resources and “crowding out” of resources and tactics is often inevitable, this paper argues that these critiques are overdrawn. First, the transgender and intersex movements have benefited from the legal infrastructure (financial and jurisprudential) of the previous litigation movements, demonstrated by the turn of “mainstream” litigation organizations to transgender and intersex litigation and the use of the previous jurisprudential shift as a partial foundation for the newer litigation. This foundation and consequent higher salience of LGBTI rights has also led to important bureaucratic policy change in favor of transgender rights. Second, the transgender and intersex rights movements generally developed and engaged the policy and legal arenas later than the lesbian and gay rights movement. Finally, the transgender and intersex rights movements bring a somewhat different legal and policy constellation, including lower levels of public support for many desired laws and policies, and arguably higher forms of political and social resistance. The legal and policy setting can be more favorable, but the rigidity of the gender binary makes the political advocacy of a range of transgender and intersex rights claims more difficult, requiring an aggressive court-based strategy. This paper explores these themes through the examination of on-going litigation in the transgender and intersex rights movements: employment discrimination, inmate rights to healthcare, student rights, and the right of intersex children to be free from surgical intervention against their consent. Ultimately, it will be argued that litigation campaigns are vital for the advancement of ultra-marginalized groups, that these campaigns are much more helpful than harmful, and that these movements have benefitted from prior LGB litigation.
Using courts to achieve policy and social change is empirically and normatively contested. Gerald Rosenberg has most prominently developed the empirical critique, drawing upon the insights of Robert Dahl in a classic 1957 essay about the limits on the Supreme Court’s power and scholarship from the 1970s and 1980s about the inefficacy of rights claiming (See Scheingold 1974/2004). In two editions of his book, The Hollow Hope, Rosenberg argued that the Supreme Court is merely a reactive institution and that social change comes only from the political arena, usually grassroots activism. Advocates turning to the courts will be disappointed, and, more dangerously, they will provoke a backlash that will harm the movement. However, a strong line of scholarship has disputed these claims, particularly in the area of LBGT rights (Keck 2009; Mezey 2007, 2009; Pierceson 2005, 2013; Bishin et al. 2015). Independent judicial policymaking is real and a deeply embedded element of the U.S. policymaking system (Howard and Steigerwalt 2012, Grossman and Swedlow 2015).
The normative critique of litigation-based liberation strategies stems from the influence of critical theory and queer/radical gender critiques of the LGBTI movement, especially the mainstream gay and lesbian movement. While these critiques have been effective in unmasking hidden power dynamics, they tend to overemphasize the lack of utility of rights-based litigation and argue that this litigation is harmful in two important ways: 1) it has a normalizing effect on sexual and gender minorities by demanding inclusion into oppressive power structures, and 2) it crowds out resources that could be devoted to more marginalized elements of the movement in favor educated, upper-middle class (mostly cisgender male) goals, such as marriage equality. Many transgender theorists, in particular, argue against utilizing a liberal, rights-claiming approach in the movement for transgender liberation. Dean Spade is a leading voice of this critique. According to Spade, a liberal approach “merely tinkers with systems while leaving their most violent operations in tact (Spade 2011, 91).” Further, as Spade bluntly states: “the standard law reform strategies most often employed to remedy the problems faced by trans people fundamentally misunderstand the nature of power and control and the role of the law in both (Spade 2011, 101).” Historian John D’Emilio expressed an earlier, but very similar, opposition to the use of litigation to achieve lesbian and gay rights, especially marriage equality litigation (D’Emilio 2007).
Certainly, courts are imperfect vehicles for the protection of the rights of marginalized groups, as are most public institutions. Indeed, courts have only recently begun to protect transgender and intersex individuals (Levasseur 2015). However, their role is changing and may prove to be a necessary antidote to hostile public opinion. Furthermore, they are potentially more rights-protective than majoritarian institutions. Finally, much of the objection to rights-based litigation is grounded in normative opposition to the approach, rather than empirical assessments of it, and often denies almost all-real and potential change stemming from legal liberal reform strategies. As I have argued elsewhere, rights claiming can work quite well (Pierceson 2005, 2013). In addition, Karen Zivi has provided an effective counter-argument to critical theorists in her important book, Making Rights Claims: A Practice of Democratic Citizenship. According to Zivi, rights claiming by marginalized groups are “a rule-breaking practice that opens up the possibilities of the new, and this is precisely what makes it suitable for democratic politics (Zivi 2012, 19). The cases in this paper demonstrate this potential.