The principle of “equal dignity in the eyes of the law” articulated by the Supreme Court’s extraordinary same-sex marriage ruling in Obergefell v. Hodges earlier this year — that all individuals are deserving in equal measure of personal autonomy and are entitled not to have the state define their personal identities and social roles — lays the groundwork for an ongoing political and legal dialogue about the meaning of equality and an evolving understanding of the indignities that our Constitution cannot tolerate.
In securing these dignitary rights of all people, Obergefell is an important landmark. But it cannot be the last word if Obergefell’s push for equal dignity for LGBTQ individuals is to point a way forward in the unending struggle for equal rights for all. If that doctrine is to signal the beginning of the end for discrimination on the basis of sexual orientation, gender identity, and gender expression – in the workplace, in housing and education, in athletics and public accommodations, in immigration and adoption, and in the construction of families — then the struggle will have to be waged not just in the courts but in regulatory and legislative bodies, as well as in the cultural arena of public discourse.
Much legal and political advocacy lies ahead if that end is to be more than a purely aspirational goal. It’s true that foundations have been laid for interpreting existing antidiscrimination rules to encompass not just gender but also sexual orientation, gender identity, and sex-related expression. But those foundations are built largely on sand rather than in the solid concrete of statutory text and constitutional doctrine. Thus, although the federal Equal Employment Opportunity Commission recently ruled that federal statutes banning gender discrimination in employment also ban discrimination based on sexual orientation, a future EEOC might well rule otherwise. A majority of the states fail to include sexual orientation in their antidiscrimination statutes. The often remarked result is that a same-sex couple can be married on Sunday only to lose their jobs on Monday. And the fate of transgender individuals is even more precarious across the country.
We need state legislation to clearly and unambiguously prohibit places of public accommodation — including hotels and restaurants — from denying equal dignity to transgender individuals. The Massachusetts Transgender Nondiscrimination bill would represent important progress in that direction. Such legislation, in recognizing and protecting the equal dignity of people whose identities some of us may have difficulty even understanding, would bring first Massachusetts and, later, the entire nation closer to our founding ideals. We would learn that some of those whom our laws today fail to protect are indeed our own children, siblings, and parents. We would discover how many people have tragically felt the need to conceal or “cover” their identities as best they could, often hating themselves either for who they are or for what they see as their own lack of courage.
People driven to acts of quiet desperation, at times even to suicide, would begin to breathe the air of freedom, and all of us would be better human beings for having solidified equal dignity as an enduring part of our laws and legal institutions. With that achievement would come a degree of enlightenment that would ultimately extend to other marginalized populations — populations that, even after centuries of progress, still include women, people of color, people living with disabilities, immigrants, and their families, friends, and allies.Laurence Tribe is university professor at Harvard University and professor of constitutional law at Harvard Law School.