New protections for transgender people are steadily being carved out in courts across the country.
In a spate of recent rulings, district and circuit courts have held that anti-discrimination laws in education and employment extend protections to transgender people.
The net effect of the rulings, which has gone largely unnoticed, is that a new legal precedent is being established allowing transgender people to use the bathrooms that correspond with their gender identities — all without any action from Congress or the Trump administration.
The decisions have emboldened LGBT rights advocates, who say like marriage equality, transgender rights will soon be the norm.
“There’s a very clear trend among federal courts that our nation’s laws that prohibit sex discrimination also prohibit discrimination on the basis of gender identity and sexual orientation,” said Sarah Warbelow, legal director of the Human Rights Campaign.
“In employment and education, blocking people from accessing a bathroom is a clear violation of the law.”
The victories for transgender advocates have come at a steady clip.
The 11th, 9th, 6th and 1st circuit courts have all ruled that Title VII anti-discrimination laws in employment extend to sexual orientation and gender identity. Warbelow said that is good news for transgender students claiming they should also be protected under Title IX anti-discrimination laws in education.
“Most courts interpret Title IX and Title VII in tandem not perfectly, but the rulings are influential,” Warbelow said.
In a 7th Circuit ruling last week, Judge Ann Claire Williams said a policy that requires an individual to use a bathroom that does not conform with his or her gender identity punishes that individual for his or her gender non‐conformance, which in turn violates Title IX anti-discrimination laws.
Cases challenging school policies are also making their way through the Richmond-based 4th Circuit and the Cincinnati-based 6th Circuit.
In December, the 6th Circuit denied a school’s request to stay a district court order allowing an 11-year-old transgender girl to use the girl’s bathroom. Citing precedent, the judges said “sex stereotyping based on a person’s gender non-conforming behavior is impermissible discrimination.”
In April 2016, the 4th Circuit ruled that Gavin Grimm, a transgender teen in Virginia, could use the boy’s bathroom at his high school. Though the Supreme Court originally agreed to hear the school’s appeal, the justices cancelled arguments and sent the case back down to the lower court after the Trump administration rescinded the Obama-era guidance that the lower court had relied on.
The joint guidance from the departments of Justice and Education said the Obama administration failed to explain how transgender protections are consistent with the express language of Title IX. Nonetheless, the departments never said Title IX doesn’t apply.
Given the lower court rulings, LGBT rights advocates say the Trump administration’s hands are now tied.
“I don’t know if the Department of Justice intends to issue new guidance, but it’s impossible at this point to issue guidance that is different than what the Obama administration issued without disregarding the strong consensus among the federal courts,” said Shannon Minter, legal director at the National Center for Lesbian Rights.
The Department of Justice refused to comment on whether it plans to issue new guidance. The Education Department’s Office for Civil Rights (OCR) said it had no new information to share at this time.
“OCR’s mission is to ensure equal access to education and to promote educational excellence through vigorous enforcement of civil rights in our nation’s schools,” the agency said in a statement to The Hill. “As the Department continues to consider the legal issues involved in protecting transgender students’ rights under Title IX, OCR will continue to investigate complaints of discrimination and harassment, including complaints from LGBTQ students, consistent with OCR’s jurisdiction under the federal civil rights laws that it enforces.”
But conservatives say courts aren’t supposed to be establishing the law of the land.
Joe Grabowski, a spokesman for the National Organization for Marriage, a group established to fight gay marriage, said it should be up to the legislature to decide what’s prohibited under Title IX.
“Unfortunately LGBT advocates in the past with the same-sex marriage issue and now with the trans rights issue seek to side-step the normal legislative and political process and have the court mandate things by fiat, which we think is an overstep of judicial authority,” he said.
Grabowski said the lower court rulings could hurt NOM’s chances of reversing the Supreme Court’s landmark decision that legalized same-sex marriage nationwide.
“If we redefine gender, obviously that makes that a much harder task,” he said. “If you redefine what men and women are then the definition of marriage as it’s known traditionally is called into question.”
Grabowski also worries about how the court ruling will impact religious institutions like faith-based universities that segregate students in dorms based on sex.
But Eric Harrington, an attorney in the National Education Association’s office of general counsel, said the concerns schools have raised about extending Title IX protections to LGBT students are unfounded.
“The reality is that transgender students are not a threat to other students, and student privacy can be respected without discriminating against transgender students.”