By Meghan Serceki
On May 2, 2022, Americans were shocked by a leaked Supreme Court draft document which stands to overturn the 1973 Supreme Court ruling known as Roe v. Wade. This case is important because it gives women autonomy over their bodies when it comes to abortion. But beyond this obvious protection, the 1973 decision set a precedent for other communities, including LGBTQ+ and trans* individuals.
Roe v. Wade was decided on the basis of protecting people’s right to privacy under the Fourteenth Amendment. The drafted court decision on Dobbs v. Jackson acknowledges that this amendment protects some rights not explicitly mentioned in the Constitution but states that abortion access does not fall under these protections as it is not seen as “‘deeply rooted in this Nation’s history and tradition.’”
This raises questions, then, of what rights are in fact protected by the Fourteenth Amendment. Abortion access has a documented place in American society and has been protected for the majority of our nation’s history, so if it’s not considered a part of American history, what does this mean for LGBTQ+ individuals who have constantly been pushed into hiding and who have few and very recent protections for their civil rights?
Abortion access arguably does play a substantial role in U.S. history. Until the mid-1800s, medical literature and newspapers regularly advertised different abortion-inducing methods, which could mean that at the time the Constitution was ratified, abortion access was widely accepted and even supported.
Abortion bans at the time were only truly imposed on Black women by slave owners, and after the Civil War the Fourteenth Amendment was passed as a way to protect their rights. However, at the same time, some people began pushing for abortion bans across the board in an attempt to maintain their control and privilege. A nationwide ban only went into effect in 1910 — a full 122 years after the Constitution was ratified.
The reasoning for the Dobbs v. Jackson decision is incredibly concerning for other individuals who have been made to stay hidden for the entirety of our history. LGBTQ+ individuals have always been here. Trans* people have always existed. But they’ve been pressured to hide their true selves and have faced persecution if they did not.
Even during the Gay Liberation Movement, trans* individuals were largely excluded. Many gay rights groups wanted to be seen as normal and conforming to heteronormative society in all ways besides their sexual orientation, and trans* people didn’t fit this image.
When initial LGBTQ+ protections were passed, they focused mostly on the basis of sexual orientation and not on gender identity, leaving trans* people still more vulnerable and causing them to stay hidden.
The Fourteenth Amendment was also the justification for the Obergefell v. Hodges decision which affirmed same-sex couples’ right to marry nationwide. When the opinion was delivered and passed in a 5-4 vote, several judges wrote dissents claiming that the Fourteenth Amendment was not applicable to the case of same-sex marriage — nearly the same argument now being used to overturn Roe v. Wade.
An astounding number of anti-LGBTQ+ bills make their way into legislatures every year, and the vast majority of those already introduced in 2022 specifically aim to restrict and override the rights of trans* people. (See: “Texas Threatens Access to Care For Trans* Youth” and “‘Don’t Say Gay Bill’: What Does It Mean?”)
The courts are meant to prevent unconstitutional legislation from being put into effect, and these decisions are made based on existing laws and legal precedents set by previous cases. If the Supreme Court reverses decisions establishing civil rights under the Fourteenth Amendment, this safeguard could be all but lost and many of these bills may come into law.
The draft opinion on Dobbs v. Jackson is not yet official, and there is time to speak up. This is a decision not only affecting people with the ability to get pregnant, it’s a decision which could undo and reverse the progress of recent decades and leave people more vulnerable than ever.
Trans* people have been forced to live in the shadows for far too long and should not be denied their civil rights and human rights because of others’ ignorance. Now is the time to act, to advocate for all those marginalized, and to demand that each and every person is granted their rights to life, liberty, and the pursuit of happiness.