Transgender law—it’s more than just bathrooms

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The LGBTQ community has experienced numerous legal successes in the past decade, but recent controversies have brought the transgender community to the forefront of civil rights litigation.  While there are varying definitions and positions on what it means to be “transgender,” Merriam-Webster defines being “transgender” as “being a person whose gender identity differs from the sex the person had or was identified as having at birth.”  A recent report by the Williams Institute at the UCLA School of Law estimated that 1.4 million – or 0.6% of U.S.  adults – identify as transgender.    The same report found that while there may be more adults who identify as transgender, the highest estimated percentage of individuals who identify as transgender is actually found within the youngest age group—ages 13 to 17.  The study found that 150,000 youth ages 13 to 17 identify as transgender, making up 0.7% of youth in the U.S.  One of the authors of the study, Dr. Jody L. Herman, stated, “Our estimates suggest that thousands of youth could be negatively impacted by laws that would limit their access to school facilities and undermine protections against discrimination.”

LGTBQ youth are 4 times more likely to attempt suicide…

Other studies show that LGBTQ individuals are almost 3 times more likely than others to experience a mental health condition such as major depression or generalized anxiety.  According to the National Alliance on Mental Illness (NAMI), “for LGBTQ people aged 10-24, suicide is one of the leading causes of death.”  In addition, LGBTQ youth are 4 times more likely to attempt suicide, experience suicidal thoughts, or engage in self-harm.  NAMI also found that “someone who faced rejection after coming out to their families were more than 8 times more likely to have attempted suicide than someone who was accepted by their family.”  Further studies have shown that legislation can have a significant impact on the mental health of LGBTQ youth; one study found that after same-sex marriage policies were implemented, the overall rate of high school students reporting suicide attempts dropped by 7% within the following year, with the highest concentration of reduced suicide attempts found among students who were sexual minorities.

It is exactly because of these mental health concerns for LGBTQ youth that the Trump administration faced initial opposition by its own Education Secretary, Betsy DeVos, in rescinding protections for transgender students that had allowed them to use bathrooms corresponding with their gender identity.  On February 22, 2017, President Trump overruled Ms. DeVos’s objections by issuing a joint letter by top officials in the Justice Department and the Education Department, which rejected a position taken by the Obama administration that allowed transgender students to use the bathrooms and other school facilities of their choice.

Previously, in the midst of North Carolina’s legal fight over HB2, the Obama administration issued a “Dear Colleague” letter to public schools, stating they must allow transgender students access to use facilities that matches their gender identity.  The guidance letter defined “gender identity” as “an individual’s internal sense of gender.”  The letter interpreted the Title IX  prohibition against “sex” discrimination to also include discrimination based on a student’s gender identity, “including discrimination based on a student’s transgender status.”  The Obama administration’s guidance reached beyond bathrooms, however, by also mentioning how schools should react in other situations involving transgender students, such as allowing all students to attend graduation ceremonies in clothing that makes them feel comfortable.  While the letter did not make any actual substantive changes to the law, it made clear that if schools districts discriminated against transgender students under this interpretation of Title IX, they could risk losing federal funding.

The Trump administration has now given its position on protections for transgender students…

The Trump administration has now given its position on protections for transgender students by officially rejecting the Obama administration’s interpretation of Title IX.  While this does not change the law, it does leave decisions regarding treatment of transgender students up to the states and local school districts.  The result is varying degrees of protections for transgender students across the country.  According to an article by NPR, “the nation’s three largest districts, New York, Los Angeles, and Chicago, have comprehensive policies that cover not just restrooms, locker rooms, and sport teams, but also issues of privacy, bullying, and harassment.”  Other states recommend that transgender students use single-stall “unisex” bathrooms, while other states provide no protections for transgender students at all.

Some have wondered what impact the Trump administration’s news will have in North Carolina, where the battle over HB2 continues.   It has now been over a year since the Charlotte City Council added LGBT protections to the city’s nondiscrimination ordinance, granting protections to transgender people in government-run facilities.  Soon after, on March 23, 2016, the N.C. General Assembly passed HB2, which has come to be known nationwide as the infamous “bathroom bill.”  One of the most contentious aspects of HB2 requires people to use bathrooms in government facilities that correspond to the sex listed on their birth certificate.  In addition, HB2 also prohibits local governments from enacting non-discrimination laws.

Numerous businesses, musicians, and organizations decided not to host their events in NC…

Less than a week after the legislature passed HB2, the American Civil Liberties Union, joined by several other parties, filed a lawsuit challenging the constitutionality of HB2.  Later, then-Attorney General Loretta Lynch also filed a federal civil rights lawsuit against NC, which sought a court order declaring HB2’s restroom provision to be “impermissibly discriminatory,” as well as seeking a statewide bar on its enforcement.  In the months that followed, numerous businesses, musicians, and organizations decided not to host their events in NC based on their opposition to HB2, causing North Carolina to lose estimated millions of dollars in lost business.

The Charlotte City Council repealed its original ordinance in mid-December 2016, reportedly in reliance on a promise that the legislature would fully repeal HB2; however, when Governor McCrory called a special session on December 21, the “deal” fell through.  Since the failure of the December special session, five bills calling for a repeal of HB2 have been proposed in the General Assembly by various legislators.  While some bills offer a straight repeal of HB2, other bills, such as HB 107, backed by Governor Cooper and various others, would include tougher penalties for crimes committed in bathrooms.

[T]he court relied heavily on the Obama administration’s guidance letter, which has now been rescinded…

Even before the Trump administration’s announcement, transgender students were taking things into their own hands.  Perhaps the most well-known case is that of Gavin Grimm, a 17-year-old transgender student who filed a lawsuit against his school board in Gloucester County, Va., after his high school refused to allow him to continue to use the boys’ restroom, and stated he had to use a private, unisex bathroom instead.  Grimm, represented by the American Civil Liberties Union, won his case in the U.S. Court of Appeals for the 4th Circuit; however, in issuing its decision, the court relied heavily on the Obama administration’s guidance letter, which has now been rescinded by the Trump administration.  In its decision, the 4th Circuit found that the Title IX regulation was “ambiguous as applied to transgender individuals,” and applied Auer deference, which holds that judges must generally defer to an agency’s interpretations of their own regulations.  Auer deference has been widely criticized, as articulated in an article by the Federalist Society, which states that Auer deference “enables agencies to pass vague regulations and construe them opportunistically, confident that they will be upheld by any reviewing court.”

After the school district appealed the 4th Circuit’s decision, the Supreme Court agreed to hear the case.  While oral arguments are still scheduled for March 28, 2017, the Clerk of the Supreme Court has requested, “the parties submit their views on how this case should proceed in light of the guidance document issued by the Department of Education and Department of Justice on February 22, 2017.”  There is still a possibility the case could proceed as scheduled, and the Court could issue a clear ruling on the highly debated question of whether Title IX’s prohibition against “sex” discrimination also includes gender identity.

Others, such as Gregory Wallace, a Constitutional Law Professor at Campbell University School of Law, have argued that it would be improper for the Court to include gender identity in its interpretation of “sex,” because the regulatory provision for Title IX did not intend to include “gender identity” in its definition of “sex” at the time it was passed in 1975.  In regards to the Grimm case, Wallace stated he “wouldn’t be surprised if that case was dismissed” because with the federal guidance no longer in place, “there would be nothing for the Court to give deference to.”

On the other hand, Ames Simmons, the Director of Transgender Policy for Equality NC, reasoned that the Trump administration “did not actually rescind ‘protections’ for transgender students—those protections reside in federal statutory law (Title IX) and the U.S.  Constitution (14th Amendment Equal Protection Clause).”  Simmons went on to say the Trump administration only rescinded “informal sub-regulatory guidance” and while “it is possible that claims related to that informal guidance that are part of the Grimm case may be dismissed, the statutory and constitutional claims would still be heard.”

If oral arguments continue as planned, Grimm has the potential to be the first case decided by the Supreme Court regarding transgender rights.  A case dismissal could prove discouraging for Mr. Grimm, as well for the numerous individuals and organizations that submitted amicus briefs on his behalf.  As courts and state legislatures continue to struggle with transgender issues, millions of transgender citizens anxiously await to be told their rights under the law.