I just can’t stop shaking my head at the absurdity of it all.
Yesterday afternoon, a lawsuit was filed in the Northern District of Texas by the Texas attorney general and 10 other states (and several local school boards).
The lawsuit challenges the Department of Education’s interpretation of Title IX, the EEOC’s interpretation of Title VII, and Department of Labor/OSHA’s interpretation of Title VII to provide protections to transgender people.
It claims that the states are harmed by these federal agencies’ interpretation of these statutes, and they seek declaratory and injunctive relief. They argue that the agencies violated federal administrative procedure law, that their guidance and interpretations are inconsistent with the meaning of the statutes, that they violate the equal protection clause by providing protections for discrimination based on gender identity, and that the agencies have violated the 10th amendment/state sovereign immunity.
However, the Supreme Court has made clear that you cannot sue an agency just because you disagree with the agency’s non-binding guidance. If these attorneys general disagree with the agency’s interpretation of what Title VII and Title IX mean, they can make that argument to the court in the context of a real case and controversy.
Grimm vs. Gloucester County School Board is one such case that was taken to court to mitigate the harm to a transgender student. It highlights why this clarification was needed. The case, where a transgender teen was restricted from using the restroom that matches his gender identity, was decided by a Federal Appeals Court in April and affirmed the student’s right to not be discriminated against based on that characteristic.
Many schools and districts have taken steps to ensure that transgender students are treated with dignity and respect, and many others reached out to the U.S. Department of Education seeking clarity about how to best implement Title IX’s prohibition on sex discrimination and provide protections for transgender students.
Ironically, despite the political upheaval over this clarification, these agencies have not recently changed existing obligations under the law. Title VII and Title IX have long prohibited discrimination on the basis of sex, and federal courts and agencies have long recognized that this includes protections for transgender people.
This clarification from the Department of Justice, combined with the federal appeals court ruling in Grimm, speaks loud and clear: Segregation based on gender identity is discrimination.
So what is this lawsuit really about?
It’s really an attack on transgender youth and adults. While the Obama administration is being sued, the real targets here are vulnerable young people and adults who simply seek to live their lives free from discrimination.
Now, local legislators like Eric Moore of Miles City and the Fort Peck Tribal Council want to take a page out of the North Carolina playbook and legislate where people use the bathrooms on the basis of gender identity. Such legislation is based on fear, intolerance and an uninformed understanding of who transgender people are or the harms these type of policies would create for vulnerable transgender youth.
We’ve seen this kind of vitriol in Montana before. It was only three years ago that Montana finally removed the unconstitutional law that made it a felony to be in a same-gender relationship in Montana. It’s been only two years since people stood in the City Council chambers in Billings saying that people should be put to death for being gay. In some places in Montana, LGBT people are still waiting to have basic protections in employment, housing and in public accommodations.
Ending discrimination against transgender people, including discrimination with respect to restrooms and locker rooms, does not undermine anyone’s privacy or safety.
Liz Welch is a public policy strategist and regional consultant for the American Civil Liberties Union. Most recently, she has consulted on defeating the discriminatory legislation targeting transgender youth in South Dakota, Tennessee and North Carolina. She lives in Billings.