Beyond the Bathroom: Trans Rights and #StandWithGavin
Posted by Riley on 02/24/2017
Ok, friends, let’s talk about the current administration’s rules and the ACLU case. We know that it is disheartening and scary out there right now, but as frightening and rage inducing as current headlines like “Trump Rescinds Trans Student Bathroom Protections” are, we want you to know that this doesn’t mean a total reversal of trans students’ rights.
But, policy and such are boring and complicated, so bear with us.
You may have heard Laverne Cox’s call to #StandwithGavin - or you may have already known about the ACLU’s case which she was referring to, G.G. v. Gloucester County School Board. This case is essentially going to be one of the most important rulings about trans rights in the near future.
The ACLU Case
Gavin Grimm is a trans student in Virginia. When he transitioned, he followed the current procedures (as set in place by Obama’s Department of Education/Title IX guidelines) and requested that he be able to use the male restrooms at school. He did this for two months before the school board created a new rule barring him from doing so. The ACLU sued. Specifically, they’ve asked the Courts to decide on several questions, but the two most important ones for this discussion are Question #2 - which has to do with Auer v. Robbins (which is explained below) - and Question #3 - which has to do with defining sex discrimination for Title IX.
The Legal Nuance
First, let’s review what Title IX is. Title IX of the Education Amendments Act of 1972 is a federal law which states that "No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance." Basically, it is a law that says discrimination in an educational setting based on sex/gender is illegal. The Obama administration interpreted this to mean that transgender discrimination is illegal. Remember this, because we will go into it more a bit later.
Question #2 – Auer
Auer v. Robbins has to do with the standards that the Judicial Branch adheres to when looking at how the Executive Branch interprets regulations under federal legislation. Auer v. Robbins generally gives the administration wide latitude to interpret current Federal Legislation and has been repeatedly upheld. For example, when the Obama administration interpreted sex discrimination to cover transgender discrimination, Gloucester County School Board was in clear violation of the Obama administration's DOE/DOJ interpretation of Title IX. Now that the Trump administration’s DOE/DOJ is interpreting it differently, this question is the one most affected in the ACLU case. But, remember, it is only looking at how the administration interprets federal legislation. While interpretation leads to implementation of policy, it doesn’t necessarily affect what federal legislation is. Interpretation, implementation, and the policies themselves cannot conflict with the textual law or previously established judicial precedent.
Question #3 – Sex Discrimination under Title IX
This question was always the most important question. We previously talked a little bit about the history of sex discrimination and how that relates to trans rights (in response to HB2 in North Carolina), if you would like to review that information.
Basically, back in 1989, the Supreme Court (SCOTUS) determined in Price Waterhouse v. Hopkins that gender or sex stereotyping (aka “what a female employee should act like, dress like” etc) was illegal under Title VII of the Civil Rights Act. SCOTUS’s decision in Price Waterhouse created the framework that the Obama administration used to justify their interpretation of Title IX and Title VII. They said that gender/sex stereotyping, or having an expectation of what a person’s gender looks like, covers transgender peoples as well. The Trump administration just rolled back that interpretation (this is what all of those articles are referring to!), but the ACLU suit argues that the Price Waterhouse v. Hopkins case covers trans discrimination.
Gavin’s case will be heard by SCOTUS on March 28, 2017. Briefs were due today, February 23, 2017. Also today, SCOTUS asked for the lawyers to address how the Trump administration's interpretation (or Question #2) affects that case.
At this point, there are two different scenarios that will occur:
SCOTUS has already agreed to review Question #3, but they may skip Question #2 as it is no longer relevant.
Because the US 4th Circuit Court of Appeals relied heavily on the Obama administration’s DOE/DOJ guidance to interpret this Title IX application, SCOTUS may “punt” Gloucester back to the 4th Circuit Court of Appeals for reconsideration. The 4th Circuit Court of Appeals +could then re-rule specifically on Question #3 (the interpretation of Title IX) without reconsidering agency interpretation.
Note: Trump’s SCOTUS nominee (Neil Gorsuch) will most likely not be appointed before this case is heard (Hearings for his appointment will start March 20th. Even if he has a smooth ride to appointment, he is not anticipated to hear or rule on this case). This leaves a possibility of a 4-4 split if SCOTUS rules, which will mean that the 4th Circuit Court of Appeals ruling stands, but is only applicable to the area the 4th Circuit covers.
Ultimately, if SCOTUS rules in favor of Gavin, it will formalize that discrimination against trans students is already illegal because it falls under sex discrimination. The implications of this ruling could apply to all other existing non-discrimination statutes that include a prohibition on sex based discrimination.
What Does this Mean? What Can I Do?
That means, my friends, that there is still hope, but we must pay attention to this case! Here are some of the things we can do:
#StandwithGavin - Don’t let the attention this case is receiving die down, because we need to keep the pressure up. Use this hashtag across social media, share articles about the case, and talk to your friends, colleagues, and other professionals about how important it is to our society.
Support all of our trans students where they are right now. This means solidarity and love, but also knowing what the current school district guidelines in your area are, and attending and advocating with school boards if issues arise or if competent guidelines are not already adopted. Don’t know what the current school board policies are? ASK.
Go to meetings, townhalls, and advocate, advocate, advocate with your local, state, and federal representatives.
Donate to trans organizations. If you can’t donate, offer to volunteer your time and skills to help them do the important work that they’re doing.
Make sure other people are doing these things too! Invite your friends to join you in making calls, writing letters, and standing up against discriminatory practices in your local communities.
Take care of yourselves. It is rough out there. You are seen. Your feelings are seen. And you are so, so loved.
Executive Director, RAD Remedy