States Join Together in Support of Federal Guidance Respecting Students’ Gender Identity

By Adam Polaski • July 27, 2016 • 1:37 pm

Today twelve states, led by Washington state, joined together to file a legal brief in federal court underlining their support for President Obama’s May 2016 guidance that public schools must respect students’ and teachers’ gender identity. The guidance was issued by the Departments of Education and Justice and protects transgender students.


The brief is filed in a case led by the state of Texas, Texas v. Department of Education. That case, filed on May 25, explains that 10 states refuse to comply with the federal government’s policies advancing fairness and equality for transgender Americans. The lawsuit is a broad challenge of 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. A separate but very similar lawsuit, led by the state of Nebraska, was filed in July.

The states involved in today’s brief – California, Connecticut, Delaware, Illinois, Maryland, Massachusetts, New Hampshire, New Mexico, New York, Oregon, Vermont, Washington, and Washington, DC. – explain, “Our shared experience demonstrates that protecting the civil rights of our transgender friends, relatives, classmates, and colleagues creates no public safety threat and imposes no meaningful financial burden.”

All of the jurisdictions involved in the lawsuit (with the exception of New Hampshire) have their own policies protecting LGBT people from discrimination, demonstrating that when states embrace LGBT-inclusive non-discrimination protections, no one is hurt but many people are helped.

Freedom for All Americans Chief Program Officer Kasey Suffredini said today:

“The twelve states who filed today’s brief speak from actual experience when they say that protecting transgender students from discrimination improves educational climates and hurts no one. Many of the states that filed today’s brief have laws on the books protecting LGBT people from discrimination. They have seen how important these laws are for public safety and for ensuring that everyone is protected equally and fairly under the law.”

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 months has been consistent with this court guidance – simply informing states about how courts are applying federal sex discrimination law to include transgender people.

In May 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.

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. That’s what these twelve states echoed today with their friend-of-the-court brief, underlining that transgender students should be respected for being who they are.

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