[A] 22‐year‐old respondent who identified as black, Puerto Rican and gender non‐conforming told the interviewer: “I was going for a walk in Prospect Park; the cops frisked me and asked me to remove stuff from my pockets.” The cops took two condoms without arresting the respondent or explaining why they had taken the condoms. The respondent then reported: “I went about my business, luckily I had condoms in my Altoids box or I’d have to have raw sex. […] I have to make money regardless.” This respondent reported that police had confiscated their condoms seven times in the last year. (Public Health Crisis, a report from the PROS Network)

This story is illustrative of the gender-based violence that police regularly commit against individuals who are in, or are thought to be in, the sex trades around the world. Oppositional sexism, the prejudice against femininity that affects women as well as gender non-conforming feminine people, is at the root of the policies that criminalize the actions of sex workers, at the expense of public health and safety.

Police around the world often target individuals in the sex trades and gender non-conforming people by using the possession of condoms as evidence of various prostitution-related crimes. The condoms-as-evidence practice leads to targeted populations being afraid to carry condoms, which is deeply concerning, since they are often most at risk of contracting sexually transmitted infections. To combat this violence and promote safer sex, we must stop the use of condoms as evidence by both police and prosecutors.

A study released last year by the Open Society Foundations found that 80 percent of South African sex workers reported police intimidation and harassment, while 45 percent said they were reluctant to carry condoms. In Zimbabwe, 85 percent of sex workers said they had been extorted by police. In Namibia, 50 percent of respondents said police destroyed their condoms, and 75 percent of those individuals who then engaged in sex work had unprotected sex. Though the problems vary in severity by country, the survey results demonstrate a pattern of state-based attacks on individuals in the sex trade via the use of condoms as evidence.

In 2011, the PROS Network conducted a survey of individuals in the sex trade in New York City to gather information on the New York Police Department (NYPD)’s use of condoms as evidence. Nearly 43 percent of respondents said they had had condoms confiscated, and an alarming 20 percent of those individuals later engaged in sex work without using a condom. “I’m damned if I do, I’m damned if I don’t,” said the same 22-year-old respondent quoted above. “I don’t want to get any disease, but I do want to make my money …. Why do they take your condoms? Do they want us to die? Do they want us to get something?” This respondent was just one of many gender non-conforming people and transgender women who reported being targeted for harassment by the NYPD, with condom possession used as justification. Seventy-five percent of transgender women and people with a gender identity other than female or male reported that fear of the police had caused them not to carry condoms.

But as a recent report from Make the Road New York demonstrates, the use of condoms as evidence affects more than just individuals in the sex trade. Although none of the transgender and gender non-conforming respondents in the Make the Road survey reported being sex workers, 59 percent of them said they were stopped by police because they were profiled as sex workers. Not only are transgender women at higher risk for being stopped—46 percent of transgender respondents said they had been physically abused by police in some manner. These respondents were mostly people of color and all lived in the Jackson Heights area of Queens, revealing how their class, race, and gender identity make them targets for police violence.

The Red Umbrella Project is working to expand the narrow, problematic focus on violence within the sex trade by showing how institutions and policies are often the cause of gender-based violence—a term that is preferable to “violence against women,” since many of the individuals who are most vulnerable to violence arising from oppositional sexism are not women-identifying. We need to change the discourse surrounding sex work from one in which we only acknowledge violence committed by promoters (traffickers and pimps) and clients to one that recognizes harassment and violence perpetrated by the police.

Individuals in the sex trades need liberation from policies that facilitate gender-based violence against them. To that end, the Red Umbrella Project is also working with a coalition of advocacy groups to promote legislation in New York that would prevent police and prosecutors from using condoms as evidence, helping curb state-sanctioned, gender-based violence.

A recent lawsuit filed by two transgender North Carolinians may offer an opportunity for the U.S. Supreme Court to expand the reach of the 14th Amendment’s Equal Protection Clause to include transgender people. In the lawsuit, Carcaño v. McCrory, Joaquín Carcaño and Payton McGarry have challenged the constitutionality of the bathroom provisions of HB 2, North Carolina’s newly passed law that, among other things, prohibits transgender people from using public restroom facilities that align with their gender identity.

The law singles out transgender people and denies them a benefit that cisgender people enjoy—the ability to use public restrooms consistent with their gender identity—and so it seems to be a fairly straightforward violation of the Equal Protection Clause, which prohibits singling out a specific group of people for mistreatment under the law. That said, the Court has not yet weighed in as to where gender identity discrimination fits into the Equal Protection Clause. The speed with which state legislatures are passing bathroom discrimination bills, however, suggests that it won’t be long before the Court is asked to do so. Without constitutional protection, more of these policies targeting transgender people will continue to be implemented throughout the country.

Despite a long history of unjust discrimination against transgender people, lower courts have time and again refused to deem them a protected class because, in their estimation, transgender people—or “transsexuals,” as much of the case law describes them—are not a “discrete and insular minority.”

Since the Court first articulated the concept in the 1930s, it has developed hallmark characteristics to determine which “discrete and insular minorities”—otherwise known as “suspect classes”—require special assistance from courts when it comes to laws that discriminate against them, and how much assistance courts should render. These are groups that have historically been subjected to discrimination, groups that are a small percentage of the population and therefore in danger of tyranny by the majority, and groups with “immutable characteristics,” a term coined by the Court to describe things like race and gender.

Black people, for example, are a suspect class according to Supreme Court jurisprudence. Laws that target them for discrimination will rarely pass constitutional muster because the strict scrutiny standard, which requires that the law be narrowly tailored to promote a “compelling government interest,” is a difficult hurdle to surpass. In other words, if a law singles out Black people for different treatment, the government must have a damn good reason why, and the Court is going to start from the presumption that the government’s reason still isn’t good enough.

Women, on the other hand, are a “quasi-suspect class”: The Court has determined that laws targeting women for unequal treatment may pass constitutional muster, if the laws are substantially related to an “important government interest.”

But when it comes to transgender people, most courts have refused to call them a suspect or quasi-suspect class.

Determining that trans people should be protected by the courts does not require an academic discussion about the immutability of gender identity, however. All it requires is common sense.

The suicide attempt rate for transgender or gender-nonconforming people in the United States is 41 percent, compared to 4.6 percent among the overall population. The unemployment rate in the trans community is double what it is for the country as a whole. Violence against trans people, trans women of color in particular, is staggering, as are poverty levels. Transgender people aren’t adequately represented in government bodies, and due in part to their small numbers, they lack the political power to prevent laws that discriminate against them from being passed.

Just look at the way HB 2 was rushed through the North Carolina legislature: On February 22, the Charlotte City Council approved an ordinance that would amend existing public accommodations policies to include protection from discrimination based on “gender identity,” “gender expression,” and “sexual orientation.” A month later, after a quasi-emergency legislative session, Gov. Pat McCrory (R) was already signing a law stripping away those protections and preventing any other cities from enacting similar ordinances at a cost of approximately $42,000 to North Carolina taxpayers. The law is so apparently unconstitutional that Roy Cooper, North Carolina’s attorney general and Democratic gubernatorial candidate, refuses to defend it, calling it a “national embarrassment.”

This rush to strip LGBTQ people of rights is a case study in the rule of a tyrannical majority over a “discrete and insular minority.” Indeed, it is difficult to think of a group of people more deserving of the “suspect class” label than transgender people.

But for reasons that no court has been able to articulate satisfactorily, laws that discriminate against transgender people-some of the most vulnerable members of our society-have generally not warranted a stricter examination than rational basis review, which rarely results in legislation being struck down.

In 1977, for example, in a case called Holloway v. Arthur Andersen & Co., the Ninth Circuit Court of Appeals reasoned that “transsexuality” did not meet the indicia of a suspect classification because transsexuals are not a “discrete and insular minority” and because the plaintiff in that case did not establish that “transsexuality is an immutable characteristic determined solely by the accident of birth, like race, or national origin.”

Occasionally, lower courts have lumped gender identity in with biological sex, although trans and cis women can face different kinds of oppression. In a 2011 case, Glenn v. Brumby, the 11th Circuit Court of Appeals found that “discriminating against someone on the basis of his or her gender non-conformity constitutes sex-based discrimination under the Equal Protection Clause.” The terms “protected class,” “suspect class,” or “quasi-suspect class” are not found anywhere in the opinion.

Because of all that uncertainty, transgender people have often turned to suing under claims of employment discrimination in violation of Title VII, or education-based discrimination in violation of Title IX. And they’ve found success, even as the courts sidestep the protected class issue.

This is because a 1989 Supreme Court case, Price Waterhouse v. Hopkins, recognized a Title VII cause of action for discrimination based on an employee’s failure to conform to stereotypical gender norms. (Title VII and Title IX cases are often analyzed using the same set of legal principles.)

In 2004, in a case called Smith v. City of Salem, the Sixth Circuit Court of Appeals applied the Price Waterhouse theory to “transsexuals”: “[d]iscrimination against a plaintiff who is a transsexual-and therefore fails to act and/or identify with his or her gender-is no different from the discrimination directed against Ann Hopkins in Price Waterhouse, who in sex-stereotypical terms, did not act like a woman.”

However, this tactic is not always successful. In Johnston v. University of Pittsburgh, a transgender man was repeatedly sanctioned for using the men’s bathroom and locker room after being told that he was no longer permitted to use those facilities. He sued the university claiming discrimination under Title IX. The court rejected his claim in March of last year, stating that the university’s policy refusing a transgender man access to the men’s locker room was based on the need to ensure the privacy of its students to disrobe and shower outside of the presence of members of the opposite sex. The court went on to note “[t]his justification has been repeatedly upheld by courts.”

As Harper Jean Tobin of the National Center for Transgender Equality and Professor Jennifer L. Levi of Western New England University School of Law pointed out in a 2013 law review article, however, “No court has ever held that there is any legal right to privacy that would be violated simply by permitting a transgender person to access a gender-specific facility that corresponds to his or her gender identity.”

For the past decade, there has been a movement toward recognizing transgender people as a protected class without any court having to actually say the words. This string of successes is partially due to the Obama administration’s federal agencies, which have implemented forward-thinking policies that apply to Title VII and Title IX claims. Without explicit constitutional protection, trans rights are relegated to the whims of the legislative and executive branches. It’s as if courts recognize that transgender people are getting the short end of the equal protection stick, but have yet to follow that recognition to the next logical step.

Until recently.

In November of last year, a judge in New York became the first federal judge to rule that transgender people are a protected class. In Adkins v. City of New York, plaintiff Justin Adkins alleged that he had been treated differently than other Occupy Wall Street protesters who were arrested during a protest on the Brooklyn Bridge in 2011 because he is transgender. Adkins filed suit alleging equal protection violations.
The City of New York moved to dismiss the lawsuit: The City argued that transgender people are not a protected class under a 2009 case, Lopez v. City of New York, which held exactly that. Adkins’ equal protection claims, therefore, should be subject only to rational basis review, making it more likely that the lawsuit would be dismissed.

Adkins countered that the appropriate standard of review is intermediate scrutiny because discrimination against transgender people is a form of gender discrimination or, alternatively, because transgender people are a quasi-suspect class and his claims are subject to intermediate review on that basis.

The court sided with Adkins, but not on the basis—as with previous court rulings—that transgender discrimination is a form of gender discrimination. Instead, the court ruled that transgender people are a quasi-suspect class in light of the Second Circuit Court of Appeals’ decision in Windsor v. United States, the precursor to the national case eventually leading to the downfall of the Defense of Marriage Act (DOMA). In Windsor, the Second Circuit ruled that “homosexual people” were a quasi-suspect class on the basis of four factors: (1) gay people have suffered a history of persecution; (2) sexual orientation has no relation to ability to contribute to society; (3) gay people are a discernible group; and (4) gay people remain politically weakened.

In November of last year, the Department of Education issued a landmark decision for transgender rights in education, holding that an Illinois school district violated anti-discrimination laws when it did not allow a transgender girl student who participated on a girls’ sports team to change and shower in the girls’ locker room, as reported by my colleague Jessica Mason Pieklo.

And just last week, the Fourth Circuit Court of Appeals held that the lawsuit of a transgender high school student named Gavin Grimm challenging his school’s bathroom policy should move forward. The court did so after the Department of Education, under the Obama administration, released guidelines warning that school rules forcing transgender students into segregated bathrooms or bathrooms inconsistent with their gender identity would be considered a violation of Title IX. Because the federal appeals court depended on the agency guidance to make that ruling, Gavin Grimm’s lawsuit is an important step in firmly establishing statutory legal protections for transgender people while waiting for the Supreme Court to determine where they stand under the Equal Protection Clause.

Plenty of school districts across the country have followed the administration’s lead and created guidelines to ensure that transgender students can safely and peacefully use their preferred bathrooms. The federal government has adopted a policy that extends the Department of Education guidance and permits federal workers to access workplace facilities that align with their gender identity as a matter of “dignity and respect,” and to “provide a workplace that is free from discrimination whether that discrimination is based on race, color, religion, sex (including gender identity or pregnancy), national origin, disability, political affiliation, marital status, membership in an employee organization, age, sexual orientation, or other non-merit factors.”

Which brings us back to Carcaño and McGarry’s lawsuit challenging the bathroom provisions in North Carolina’s HB 2. When Windsor made its way to the Supreme Court, the Court, in an opinion authored by Anthony Kennedy, invalidated DOMA without saying whether gay people are a suspect class, and ignored the Second Circuit’s ruling that theyare a quasi-suspect class. Kennedy, as he is wont to do, framed the issue as one of “human dignity.”

It is no surprise, then, that the term “dignity” is peppered throughout Joaquin Carcaño and Payton McGarry’s complaint challenging HB 2 on equal protection grounds. Carcaño and McGarry are asking a district court in North Carolina to declare them members of a protected class entitled to heightened scrutiny. If the district court refuses, they will presumably ask the Fourth Circuit Court of Appeals. If that court also refuses, it will be up to the Supreme Court to explain how discrimination against transgender people as transgender people is no big deal and warrants only rational basis review, but discrimination against transgender people as a form of gender discrimination warrants heightened scrutiny.

In this case, there is another option for protecting LGBTQ people’s rights, though not one that may be useful for future assaults. If the Supreme Court continues to punt on whether LGBTQ people are a protected class or finds that permitting transgender people to use the appropriate restroom and locker room facilities somehow implicates a heretofore undiscovered legal right to privacy, then it is in this context that Anthony Kennedy’s dignity jurisprudence, which was also the linchpin of his majority opinion in Obergefell v. Hodges, will do quite nicely: Where is the dignity in forcing transgender people to use a bathroom that doesn’t align with their gender identity?

There is none.

In his quest to secure conservative votes, Sen. Ted Cruz (R) has embraced extremists across the country, many of whom have well-documented histories of anti-choice, anti-LGBTQ, and racist rhetoric. As more moderate Republicans flock to Cruz in a push to block Donald Trump from winning their party’s nomination, Cruz’s support of these extremists sheds light on his future policy making, should he be elected president.

Though hardly an exhaustive list of the radicals with whom Cruz has aligned, here are some of the most reactionary characters in his playbook.

Troy Newman

Cruz and activist Troy Newman, head of the radical anti-choice group Operation Rescue, have spent months on the campaign trail praising each other’s extreme stances on abortion.

Operation Rescue moved to Wichita, Kansas, in 2002 to continue its campaign to intimidate abortion provider Dr. George Tiller, whom it had nicknamed “Tiller the Killer.” Before Newman came on as president, the group had previously targeted Tiller as part of its 1991 “Summer of Mercy,” when it led protesters to physically block and verbally intimidate those entering abortion clinics in Wichita, holding signs that, among other things, read “Tiller’s Slaughter House.”

Although Newman issued a statement on behalf of Operation Rescue condemning Scott Roeder when he murdered Tiller in 2009, a 2010 Ms. investigation reported that, according to Roeder, Newman had once told him that “it wouldn’t upset” him if an abortion provider was killed. (Newman denied meeting Roeder.) Roeder also had the phone number of Operation Rescue’s Cheryl Sullenger on a note on the dashboard of his car when he murdered Tiller. Sullenger, the senior vice president of the group, had been sentenced to prison time in 1988 for attempting to bomb an abortion clinic.

Newman co-founded anti-choice front group Center for Medical Progress (CMP) in 2013, whose widely discredited videos alleged that Planned Parenthood was illegally profiting from fetal tissue donations. Multiple ensuing investigations at both the state and federal level produced no evidence of wrongdoing, and one of the group’s other founders, David Daleiden, was later indicted in connection to the videos. Newman later separated from the group.

Despite the extremism of Newman’s groups, Cruz lauded the anti-choice activist upon receiving his endorsement in November, saying in a statement, “We need leaders like Troy Newman in this country who will stand up for those who do not have a voice.”

Cruz announced in late January that Newman would co-chair his coalition of anti-choice advisers, “Pro-Lifers for Cruz,” listing Newman’s book co-authored with Sullenger, Their Blood Cries Out, among his accomplishments. As Right Wing Watch noted, however, the text argues women who have abortions should be treated like murderers, and that abortion doctors should be executed. The book, now out of print, read: “[T]he United States government has abrogated its responsibility to properly deal with the blood-guilty. This responsibility rightly involves executing convicted murderers, including abortionists, for their crimes in order to expunge bloodguilt [sic] from the land and people,” according to Mother Jones.

Tony Perkins

Troy Newman isn’t the only radical in “Pro-Lifers for Cruz”—the group’s chair, Tony Perkins, is an anti-LGBTQ activist with a history of aiding extremist anti-choice groups.

Since 2003, Perkins has led the Family Research Council (FRC), classified by the Southern Poverty Law Center (SPLC) as a “hate group” for its anti-LGBTQ record.

Recounting Perkins’ biography, the SPLC noted that although he claimed to have left a police force position over a disagreement about containing an anti-choice protest, “the reality is quite different.” The SPLC pointed to a report from the Nation finding that Perkins “failed to report an illegal conspiracy by anti-abortion activists” Operation Rescue during the group’s 1992 “Summer of Purpose,” while he worked dual roles as a reserve police officer in Baton Rouge and reporting for a conservative television station:

According to Victor Sachse, a classical record shop owner in the city who volunteered as a patient escort for the clinic, Perkins’ reporting was so consistently slanted and inflammatory that the clinic demanded his removal from its grounds.

In order to control an increasingly tense situation, the police chief had a chain-link fence erected to separate anti-abortion activists from pro-choice protesters, and he called in sheriff’s deputies and prison guards as extra forces. Perkins publicly criticized the department and the chief. Then, after learning about plans for violent tactics by anti-abortion activists to break through police lines and send waves of protesters onto the clinic’s grounds, he failed to inform his superiors on the force. As a result of his actions, Perkins was suspended from duty in 1992, and he subsequently quit the reserve force.

Perkins also has ties to white supremacist groups and is well known as a vocal opponent of LGBTQ equality, having suggested, among other things, that there is “a correlation between homosexuality and pedophilia,” and that lawmakers who supported the repeal of the military’s “Don’t Ask, Don’t Tell” policy had “the blood of innocent soldiers on their hands.”

Frank Gaffney

Cruz’s list of national security advisers, meanwhile, includes Frank Gaffney Jr. Even in the face of criticism, Cruz has defended his pick, telling CNN’s Wolf Blitzer that “Frank Gaffney is a serious thinker who has been focused on fighting jihadists, fighting jihadism across the globe.”

Gaffney, a former Reagan administration official, is the founder and president of the Center for Security Policy (CSP). In this year’s Intelligence Report, which documents extremist groups, the SPLC categorized CSP as an anti-Muslim hate group.

The CSP’s primary focus in recent years “has been on demonizing Islam and Muslims under the guise of national security” by promoting conspiracy theories, according to SPLC. The Center for American Progress’ 2011 report, The Roots of the Islamophobia Network in America, featured Gaffney as a key player in promoting anti-Muslim rhetoric in the United States, writing that he often “makes unsubstantiated claims about ‘stealth jihad,’ the ‘imposition of Sharia law,’ and the proliferation of ‘radical mosques.'”

Gordon Klingenschmitt

Cruz announced in early April that his Colorado Leadership Team included state Rep. Gordon Klingenschmitt (R-Colorado Springs), asserting he was “honored” to have the support of the politician and 24 other conservatives from the the state.

The previous week, Klingenschmitt had made headlines for claiming transgender people are “confused about their own identity” during an appearance on Comedy Central’s The Daily Show.

Klingenschmitt had been previously stripped of his position on the Colorado House of Representatives’ House Health, Insurance and Environment Committee in early 2015 after claiming on his television program that a violent attack on a pregnant woman in the state was the result of “the curse of God upon America for our sin of not protecting innocent children in the womb.”

“Part of that curse for our rebellion against God as a nation is that our pregnant women are ripped open,” claimed Klingenschmitt at the time before going on to pray for an “end to the holocaust which is abortion in America.”

In the wake of the deadly shootings at a Colorado Springs Planned Parenthood in November 2015, Klingenschmitt claimed that “Planned Parenthood executives” have the “same demonic spirit of murder” as the alleged killer, Robert Lewis Dear Jr.

Earlier in 2015, the Colorado state representative said that Planned Parenthood executives have “demons inside of them, you can see the blood dripping from their fangs. These people are just evil.” That June, he criticized Wisconsin Gov. Scott Walker (R) for signing a measure forcing those seeking abortions to receive medically unnecessary forced ultrasounds, claiming that the law didn’t go far in enough because it didn’t ban abortion entirely
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James Dobson

Focus on the Family (FoF) founder and chairman James Dobson played a starring role in a February ad released by the Cruz campaign, which praised the candidate for defending “the sanctity of human life and traditional marriage.” That same month, he rolled out a robocall for a super PAC supporting the candidate after giving Cruz his endorsement last year.

Dobson’s FoF has spent millions promoting its anti-choice and anti-LGBTQ extremism, even dropping an estimated $2.5 million in 2010 to fund an anti-choice Super Bowl ad featuring conservative football player Tim Tebow. Dobson also founded the aforementioned Family Research Council, now headed by Tony Perkins.

Dobson’s own personal rhetoric is just as extreme as the causes his organization pushes. As extensively documented by Right Wing Watch,

Dobson has:

• Threatened to leave the United States in protest of the Affordable Care Act.
• Alleged that Obamacare will deprive the elderly of life-saving treatments.
• Warned that the Harry Potter series is a hazard to children.
• Predicted that marriage equality will destroy religious freedom, send pastors to prison, turn America into Nazi Germany and bring about God’s judgment.
• Said that the United States could have a second civil war over marriage equality.
• Insisted that bisexuality means “orgies.”
• Claimed that the Shepard-Byrd Hate Crimes Act would grant legal protections to pedophilia, necrophilia, incest and bestiality.
• Blamed the Sandy Hook shooting on legal abortion and marriage equality.

Other Notable Extremists Working With Cruz

Conservative radio host Steve Deace, a member of the Cruz campaign’s Iowa leadership team, is “virulently anti-LGBT, having repeatedly attacked supporters of LGBT equality as being part of a ‘Rainbow Jihad,'” according to media watchdog organization Media Matters for America.

In October Cruz announced he was “thrilled” to receive the endorsement of Sandy Rios, a conservative radio host and official at the American Family Association-yet another organization classified by the SPLC as a hate group. Rios gained notoriety during the 2015 Amtrak crash in Philadelphia after claiming the conductor’s sexuality may have played a role in the accident.

Cruz and several other Republican presidential candidates spoke alongside far-right, anti-LGBTQ pastor and Christian radio host Kevin Swanson in November at the National Religious Liberties Conference. Swanson is featured in GLAAD’s Commentator Accountability Project, which highlights figures who “represent extreme animus towards the entire LGBT community.”

A&E’s Duck Dynasty star Phil Robertson has been a fierce Cruz supporter, and in February the presidential candidate pitched the idea of making him an ambassador to the United Nations should he be elected. Just weeks earlier, Robertson had called same-sex marriage “evil” during a Cruz rally. This statement came as little surprise given the reality television star’s previous comments condemning homosexuality and linking it to bestiality.

Cruz was also “thrilled” in March to win an endorsement from “Ohio’s top conservative leaders”—a list that included activist Linda Harvey, who once wrote that LGBTQ youth may be possessed by “demonic spirits.”