Transgender Rights are At Risk Under Trump

Through the Department of Justice, the Trump administration makes its priorities known by deciding what sort of cases to pursue and what cases, generally cases brought by states or private parties disputing the validity of federal laws or actions of the federal government, to defend against in court.  Up until about a week ago, the Department of Justice has been defending a case which had the potential to strengthen the protections against discrimination for transgender people–no more.

A few months before the end of his presidency, the Obama administration issued a statement to public schools that trans students were protected under federal civil rights law and that schools needed to let those students use bathrooms aligned with their gender identity.  Several states brought lawsuits over the statement, declaring it a misinterpretation of federal law.  Just recently, the Trump administration announced that the Department of Justice would be withdrawing from defending all these lawsuits.

Transgender Rights

This isn’t really a surprise, Trump called the Obama administration’s approach on trans rights overreach on the campaign trail and has certainly not made LGBT rights his priority.  However, the step certainly is a giant step backwards in terms of protecting the rights of trans people.  In order to understand the exact effect of the move, let’s look at exactly what the guidance from the Obama administration did and didn’t do, the effect these cases could of had if they had gone forward, and the effect of the Trump administration’s decision to withdraw altogether from

Effects of the Obama Administration’s Guidance

The Obama administration’s statements came a time when trans rights were squarely in the public eye–right on the tails of the Department of Justice and North Carolina initiating a lawsuit over a law out of North Dakota barring laws across the state protecting the LGBT community from discrimination.  This law was one of many along the same lines passed or moving forward through the country.  The Obama administrations goal was to combat laws allowing, or in North Carolina’s case enforcing, discrimination against the LGBT community

However, the guidance the Obama administration was just that-guidance.  It wasn’t a law, that would take an act of Congress.  It didn’t even have the legal force behind and executive order or presidential memorandum.  Instead, it was exclusively a change in policy on the part of the Department of Justice and the Department of Education.

However, calling it just a policy change belies the full effect of the statement.  The statement determined that it was the view of President Obama, and the agencies under his purview, that schools, sports teams, housing, school fraternities or sororities, and the like were all legally required to allow a transgender person to use a bathroom–or locker room–that aligned with their gender identity.  The statement based this conclusion on Title IX of the Education Amendments of 1972.  Title IX forbids schools from discriminating based on a student’s sex.  The statement determined that a student’s gender identity was their sex for purposes of sex discrimination.  Thus, it further argued that bans revolving around gender identity spring forth from expectations and stereotype of how somebody assigned a specific birth gender should behave and appear.

So basically, the statement said that, while schools could include things allowing additional privacy where transgender students were using a bathroom or changing room, outright denying them access to bathrooms or locker rooms of their actual gender identity was a violation of federal law.

So this wasn’t a law or an executive order, but it had a very definite legal effect.  By determining that such actions violated federal law, it would mean an end to federal funding to schools–and even states–which refused to follow the Obama administration’s guidance.  As you might imagine, the response in the courts from schools who refused to change their rules to follow the statement was basically immediate.  Lawsuits cropped up quickly, and a federal court in Texas even put a temporary injunction on the rule–preventing it from taking effect across the nation.

The Department of Justice has been defending these lawsuits, and their outcomes could have had serious, far-reaching results as legal precedent.  The same arguments made for how to approach gender in sex discrimination could have been extended to more housing rules, rights in the workplace, and other situations involving discrimination against transgender people.  However, with the Trump administration withdrawing from the defense of these lawsuits there is no real chance of this now.  Instead, the guidance itself will almost certainly–barring action by Congress or a future President–never take effect.  Any possible ripple effect, benefiting trans people throughout the United States of America, is put on hold at a minimum.

The Trump Administration’s Withdrawal and Similar Litigation Around the Country

As mentioned above, this withdrawal is not particularly surprising.  However, it is disappointing to the nearly one and half million transgender people in the U.S. who have seen a light of hope, with the potential of protecting their right to their gender identity, snuffed out.  Fortunately, these lawsuits weren’t the only litigation of their type going on around the country.  Unfortunately, it’s uncertain how long those lawsuits and policy changes will stay in play.

In the last few years, the Equal Employment Opportunity Commission (EEOC) has been hard at work trying to ensure the rights of the LGBT community in the workplace.  Using similar arguments to those in the Obama administrations statements, the EEOC has been involved in a few lawsuits asserting that sex discrimination protections incorporate protections based on sexual orientation and gender identity.

The EEOC announced just last week that they would continue to appeal a case of sex discrimination where a transgender funeral director was fired for refusing to comply with their employer’s sex specific dress code.  The EEOC asserted the arguments we’ve discussed above in support of the funeral director’s right to their gender identity, in response the funeral home based their defense on the Title VII exemption in the Religious Freedom Restoration Act (RFRA)–essentially arguing that they have genuinely held religious belief and Title VII anti-discrimination rules are substantially interfering  with their practice of that religion.  While the RFRA is, in much of the country, not allowed in cases brought by non-government entities, in an odd twist the fact that this case was brought by the EEOC allowed the defense.  The case itself includes some complicated and contentious areas of evolving law, from sex-based dress codes to the proper application of the RFRA in Title VII cases.  All of this could lead to huge strides when it comes to LGBT rights and clarifying the interaction of rights and workplace discrimination.  However, even this litigation may be short lived.   The EEOC have recently released a statement that their position on the case may change given the stances of AG Jeff Sessions and once General Counsel for the EEOC is confirmed.

The rights and protection of the LGBT community, and specifically transgender people, are more at risk then ever.  The courts are often where the most substantial changes in rights and protections come from and the Trump administration has shown that they will not stand up for the rights of LGBT citizens.  The sad truth is, if they continue as they have been, much of strides this country has taken in protecting right will have been for naught.

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