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Biden Proclaims Support For Transgender Rights; But Religious Ones?

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Biden Proclaims Support For Transgender Rights; But Religious Ones? Supreme Court Ruling on Conflict Imminent, But There’s a Middle Ground

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A Pivotal Decisions For Transgender Rights

WASHINGTON, D.C. (June 1, 2021) - As the Supreme Court is poised to issue what CNBC termed a "potentially pivotal decisions for transgender rights," the President this morning issued a proclamation advocating "nothing less than full equality" for transgender people and others within the "LGBTQ+ community in America."

While many legal commentators see the Fulton v. City of Philadelphia [No. 19-123] and many similar lower court cases as presenting a conflict between the rights of transgender individuals and those individuals and organizations with strong religious convictions regarding sexuality, there is a middle ground to accommodate both of these apparently competing rights, argues public interest law professor John Banzhaf.

The key is to recognize that virtually no legal right - including even those protected by the First Amendment - is absolute and trumps all others, says Banzhaf, who notes that statutes protecting transgender individuals and religious freedom both provide for only a reasonable accommodation, not a clear and unfettered response to all interests and demands.

Thus, religious beliefs are protected under Title VII by requiring that there be a "reasonable accommodation" to them. A similar scope of protection is provided by various Religious Freedom Protection Acts [RFPA] which are designed to protect religious interests.

Under them, deeply religious persons are not granted absolute freedom to practice their religious identity and beliefs no matter what the consequences; rather, they are entitled to no more than a reasonable accommodation to them.

Gender Dysphoria Is A Protected Disability

As an even better example, a similar reasonable accommodation standard is applied to protecting the interests of those with disabilities under the Americans With Disabilities Act [ADA]; and the weight of legal authority today recognizes that gender dysphoria - like requiring the use of a wheelchair - is a protected disability under federal disability rights laws.

Thus, wheelchair users' fundamental right to enter and use a building is protected, but handicapped students do not have an absolute right to use each and every exit or entrance which may be available to others. Instead, the school need only make a reasonable number of entrances accessible to wheelchair users, notes Banzhaf.

Similarly, a school does not have to provide wheelchair access to all classrooms to adequately protect the rights of students in wheelchairs if there are a sufficient number of wheelchair-accessible classrooms to accommodate the small percentage of wheelchair-using students who do need them.

Using these examples as analogies, courts may be able to fashion reasonable accommodations for those with gender dysphoria while at the same time making a reasonable accommodation for those with often contradictory religious views or other concerns, including even sexual privacy.

For example, using the same standard, providing enough single-user restrooms and individual changing and showering facilities to reasonably satisfy the requirements of the tiny percentage of students who are transgender might adequately protect their rights without opening up all female restrooms to anatomical males who might simply claim to feel female.

Similar reasonable accommodations - a balancing of different interests - may well be possible in other LGBTQ+ cases, says Banzhaf.

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John F. Banzhaf

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