Shameful: States File Lawsuit Refusing to Follow Federal Guidance on Transgender Student Protections

By Adam Polaski • May 25, 2016 • 3:28 pm

Today, May 25, several states filed a lawsuit against the United States government, refusing to comply with the federal government’s policies advancing fairness and equality for transgender Americans. The lawsuit comes just a few weeks after recent guidance issued by the Departments of Education and Justice protecting transgender students. The lawsuit itself is broader, challenging the administration’s interpretation of “sex discrimination” in Title VII and Title IX of the U.S. Civil Rights Act to include discrimination based on gender identity.

Many courts have interpreted the U.S. Civil Rights Act’s prohibition against “sex discrimination” to include discrimination based on gender identity and sexual orientation. The Obama administration’s guidance in recent weeks has been consistent with this court guidance – simply informing states about how courts are applying federal sex discrimination law to include transgender people. But now, these 11 states are refusing to respect this interpretation.

The 11 states today named many national actors as defendants, including the Department of Education, Department of Justice, the Department of Labor, and the U.S. Equal Employment Opportunity Commission (EEOC).



A Reprehensible Lawsuit

Kasey Suffredini, Freedom for All Americans Chief Program Officer and Director of the Transgender Freedom Project, said today about the lawsuit (which you can read here):

“Every single student, no matter who they are, deserves to BE safe and respected in school. The DOE’s guidance ensures that all students can go about their day without fear of harassment, isolation or bullying. It is reprehensible that some elected officials seek to malign and single out transgender students for harm. We should be sending a message to all youth, including transgender youth, that we support them and that we have their backs. This lawsuit sends the exact opposite message.”

The plaintiffs in the case are Texas, Alabama, West Virginia, Tennessee, Oklahoma, Louisiana, Utah, Georgia and Wisconsin. Maine Governor Paul LePage, the Arizona Department of Education, Harrod Independent School District (TX) and Heber-Overgaard United School District (AZ) are also listed.

In several of these states during the 2016 legislative session – including Wisconsin, Tennessee, and Oklahoma – lawmakers cast bipartisan votes against bills seeking specifically to restrict transgender students from using the restroom that aligns with the gender they live as in all facets of their lives. Dozens of anti-transgender proposals have already been defeated this year – and these states would have been wise to continue moving in the right direction when it comes to treating everyone equally.


Guidance from the Departments of Education and Justice

The guidance, issued in early May of 2016, is rooted in clear legal precedent and simply reminded public schools and universities that transgender students should have access to bathrooms that align with their gender identity, per Title IX of the Education Amendments of 1972.

The Department of Education guidance simply ensures that all students, including those who are transgender, can learn and succeed in school without fear of bullying, harassment or isolation. It’s standard-issue guidance that departments like ED and DOJ routinely provide on issues under federal law. Unlike what these 11 states make in the Texas v. Department of Education lawsuit, there’s nothing in the guidance challenging gender-specific restrooms. The guidance is solely focused on how schools can include transgender students equally.

This interpretation of “sex discrimination” to include gender identity protections is nothing new.

The Department of Education first announced in 2014 that Title IX protections covered transgender students. Last month, the U.S. Fourth Circuit Court of Appeals ruled in favor of Virginia transgender teenager Gavin Grimm, declaring that his local school board’s move to ban him from using the public restroom that matched his gender identity violates Title IX regulations. In December 2015, the Department of Education settled a complaint with a school district in Palatine, IL — following a similar case in Arcadia, CA — affirming that transgender discrimination is illegal sex discrimination.

The May 2016 guidance is not legally binding, but it is tied directly to whether states with contradictory laws on the books stand to lose federal funding.

This week Freedom for All Americans released a backgrounder breaking down what the administration’s Title IX guidelines did and did not do. Read the document here.

What’s at Stake

Lost in the stories about the legal and legislative back and forth over the Department of Education guidance is the fact that the guidance concerns a very small, very vulnerable population of Americans – who are already facing so much discrimination.

This vulnerability is particularly acute for transgender youth. Nearly nine in ten transgender students are verbally harassed at school due to their gender identity and more than half have been physically assaulted, according to a 2009 GLSEN survey. In fact, according to GLSEN’s 2013 National School Climate Survey:

  •  More than 75 percent of transgender students report feeling unsafe in school.
  • Nearly 60 percent of transgender students have been forced to use a bathroom or locker room inconsistent with their gender identity.
  • More than 63 percent of transgender students avoid using public restrooms because of fears of harassment or assault.

There is so much at stake with the policies that guide what kinds of atmospheres we create in the schools our children attend. That’s why the DOJ and DOE guidance is a commonsense, long-overdue measure to ensure that all students can attend school in safe and nurturing environments.

No one – in any state, or in any space – should face discrimination because of who they are. The fact that these states are railing against guidance from the administration that merely underlines the fact that transgender students should be respected for being who they are is a travesty, one that we must all come together to oppose.

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