Election Day May Decide The Future Of Trans Rights

It's easy to get caught up in the headliners this election, reducing the stakes of Nov. 8 to Clinton versus Trump, broken glass ceiling versus apocalypse. But there's a lot at stake here that runs far deeper than the names at the top of the ticket, and one of the most pressing, and often forgotten, issues in the 2016 election is transgender rights. Not just for people like Misty Snow, a transgender Senate candidate from Utah (pictured above), but for the ordinary transgender people all around you, often invisible and nameless, going about our daily business.

Though TIME magazine may have dubbed 2014 the "year of the trans tipping point," 2016 is arguably the moment that the right woke up to the fact that transgender people exist and are not going away, triggering a backlash that swept across city council chambers and state legislatures. North Carolina's HB2, which targeted trans people using public restrooms, was perhaps the most high-profile example, but it wasn't the only one. In Mississippi, HB 1523 enshrined "religious freedom" (the right to discriminate) into law. In Alabama, the Oxford City Council passed and later repealed an aggressive bathroom bill complete with fines for peeing in the wrong place. In August, Texas sued the federal government over anti-discrimination clauses in health care. The EEOC is currently investigating multiple complaints brought by trans people alleging discrimination. In May, the Obama administration issued a directive protecting bathroom access, triggering a wave of petulant lawsuits from multiple conservative states.

Conservatives care about where we pee, how we access medical care, and whether we have equal rights under employment law, because despite the fact that we make up only 0.6 percent of the population, we unsettle and terrify the right. In a limited world where gender is a strict, unwavering binary, transgender people represent a dangerous instability, a threat to established norms. Just as cis gays pushed the envelope when they took marriage rights to the Supreme Court, so too is the trans community signaling that it will not go away, and is an integral part of society, with a Supreme Court case of its own.

Only this one is about a much more basic and fundamental right: The ability to go to the bathroom.

Gavin Grimm's case has been winding its way through lower courts in a painstaking and inexorable slog for the last two years. The Virginia high school student has a pretty basic desire: He'd like to use the men's room at school, because his school uses gendered bathroom designations, and he is a boy. His school, however, disagrees, and has battled him through district court and the Fourth Circuit Court of Appeals, leaving Grimm with the nuclear option, and the ACLU as backup.

You are also, indirectly, voting to decide who should fill that Supreme Court seat, which means that you are currently occupying a position of tremendous power when it comes to the future of determining transgender rights.

This is the first trans rights case to hit the Supreme Court. The right has apparently chosen bathrooms as the hill it's going to die upon, so the trans community is going to take the fight to the top. Only there's a glaring problem: The vacancy on the Supreme Court. It has remained unfilled for 231 days, as of this Wednesday, after President Barack Obama nominated Merrick Garland to fill it. Senate Republicans have hotly insisted that they refuse to hold confirmation hearings because it's the "will of the people," two-thirds of whom would like the Senate to do its job.

It's painfully clear at this juncture that the vacant Supreme Court seat will be filled by the next President of the United States, and that means that when you vote next Tuesday (or before, if you're joining the millions of us in early voting across the country), you aren't just voting for the president. You are also, indirectly, voting to decide who should fill that Supreme Court seat, which means that you are currently occupying a position of tremendous power when it comes to the future of determining transgender rights.

Bathrooms are only a small part of the picture — for the record, Trump believes this is a "states rights" issue and Secretary Clinton has commented that legislation like HB2 is "discriminatory." (Secretary Clinton also quietly instituted a groundbreaking policy at the State department when she lifted the requirement to provide proof of gender confirmation surgery to change your gender on your passport.) But this isn't going to be the last time trans rights come before the court, though it may set the tone for future decisions. At the heart of this case isn't just the question of who should use which bathroom, but a more fundamental issue for jurisprudence: Are transgender people actually people? Is gender defined by an assignation made at birth on the basis of superficial physical characteristics, or something else? If someone is a woman, is she a woman, full stop, or is she something else, contingent on society?

The stakes of the vacant Supreme Court seat are not a new subject of conversation in this election, and, by extension, neither are the social, legal, and civil rights issues that seat represents. This isn't just about the high court, either, as there are an unprecedented number of lower court vacancies right now, and opportunities to fill seats across the U.S. Culturally, people understand that the next president will profoundly shape the court system and the future direction of Americans jurisprudence, taking us either forward or back, depending on who is named to fill that seat, and whether the Senate drags it out for months or even years. But the reality of that is slapping some of us in the face harder than others.

Transgender people are at the tipping point of these issues — though we have existed for centuries (and likely millennia), society at large has suddenly woken to our existence. For us, that vacant seat represents, in the very near future, a judgment from the preeminent legal body of the United States on whether we are entitled to civil rights just like other Americans.

For us, this could be another Buck v. Bell moment, in which Justice Oliver Wendell Holmes Jr. famously said "three generations of imbeciles are enough" and affirmed the "right" to sterilize disabled people in 1927, or it could be another Roe v. Wade or Obergefell v. Hodges, groundbreaking civil rights cases that affirmed the rights of women and people of the same gender who want to marry each other. Will the court agree that Gavin is a boy who should have been allowed to use the men's room, thereby laying down an incredible precedent for subsequent litigation, or will it decide that the school district should be allowed to determine his gender, laying the groundwork for more discrimination? Your vote for president may decide the answer to that question, and many more to come.