11 States Sue Feds Over Transgender Rights

Nine states and officials from two others filed suit yesterday against the federal government, challenging various interpretations of the anti-discrimination provisions of Title VII and Title IX by the Obama Administration. Various guidance documents, the most recent or which was issued earlier this month (see prior posting), take the position that the ban on "sex" discrimination found in existing laws encompass a ban on discrimination against transgender individuals. The complaint (full text) in State of Texas v. Untied States, (ND TX, filed 5/25/2016), citing the Administrative Procedure Act and other constitutional and statutory provisions, alleges:

Defendants have conspired to turn workplaces and educational settings across the country into laboratories for a massive social experiment, flouting the democratic process, and running roughshod over commonsense policies protecting children and basic privacy rights. Defendants’ rewriting of Title VII and Title IX is wholly incompatible with Congressional text. Absent action in Congress, the States, or local communities, Defendants cannot foist these radical changes on the nation.

New York Times reports on the lawsuit.

Federal Government Issues Guidance Under Title IX On Rights of Transgender Students

The U.S. Justice Department and the Department of Education today released a letter (full text) providing Joint Guidance to schools and colleges on ensuring the civil rights of transgender students.  The Joint Guidance applies to schools covered by Title IX, i.e. schools that receive federal financial assistance. The Joint Guidance notes, however, that:

An educational institution that is controlled by a religious organization is exempt from Title IX to the extent that compliance would not be consistent with the religious tenets of such organization. 20 U.S.C. § 1681(a)(3); 34 C.F.R. § 106.12(a).

The letter states in part:

The Departments interpret Title IX to require that when a student or the student’s parent or guardian, as appropriate, notifies the school administration that the student will assert a gender identity that differs from previous representations or records, the school will begin treating the student consistent with the student’s gender identity. Under Title IX, there is no medical diagnosis or treatment requirement that students must meet as a prerequisite to being treated consistent with their gender identity....

A school’s Title IX obligation to ensure nondiscrimination on the basis of sex requires schools to provide transgender students equal access to educational programs and activities even in circumstances in which other students, parents, or community members raise objections or concerns. As is consistently recognized in civil rights cases, the desire to accommodate others’ discomfort cannot justify a policy that singles out and disadvantages a particular class of students....

Title IX’s implementing regulations permit a school to provide sex-segregated restrooms, locker rooms, shower facilities, housing, and athletic teams, as well as single-sex classes under certain circumstances. When a school provides sex-segregated activities and facilities, transgender students must be allowed to participate in such activities and access such facilities consistent with their gender identity.

Justice Department Sues North Carolina Over Transgender Bathroom Access

In a counter-suit to one filed by the governor of North Carolina (see prior posting), U.S. Attorney General Loretta Lynch announced yesterday that the Justice Department has filed suit against  the state of North Carolina, the University of North Carolina, and the North Carolina Department of Public Safety over H.B. 2, the state's new transgender bathroom law.  The complaint (full text) in United States v. State of North Carolina, (MD NC, filed 5/9/2016) seeks a declaratory judgment that in complying with H.B. 2,  defendants are discriminating on the basis of sex in violation Title VII and Title IX, and on the basis of sex and gender identity in violation of the Violence Against Women Act.  The suit also asks for injunctive relief.

North Carolina Sues Feds In Transgender Bathroom Dispute

As previously reported, last week the U.S. Department of Justice sent a letter to North Carolina Governor Pat McCrory warning that compliance with North Carolina's recently enacted House Bill 2 on transgender bathroom access places the state in violation of Title VII of the 1964 Civil Rights Act, and threatens millions of dollars in federal funding.  The letter called for a response from the state by today.  As reported by the Washington Post, this morning Gov. McCrory filed suit against the federal government challenging its interpretation of the federal civil rights laws.  The complaint (full text) in McCrory v. United States, (ED NC, filed 5/9/2016) asserts that the Justice Department's position constitutes "a baseless and blatant overreach."  It argues in part:

This is an attempt to unilaterally rewrite long-established federal civil rights laws in a manner that is wholly inconsistent with the intent of Congress and disregards decades of statutory interpretation  by the Courts. The overwhelming weight of legal authority recognizes that transgender status is not a protected class under Title VII. If the United States desires a new protected class under Title VII, it must seek such action by the United States Congress.... Moreover, the Department has similarly overreached in its interpretation of the Violence Against Women Reauthorization Act of 2013 (“VAWA”).

The University of North Carolina, which was also warned by the Justice Department in connection with its obligations under Title IX, was not one of the plaintiffs in the lawsuit.

Lawsuit Challenges School's Accommodation of Transgender Rights and DOE's Rules

In the escalating war over transgender rights, a lawsuit was filed in federal district court in Illinois this week by a group of  high school students and their parents challenging an agreement between a Cook County school district and the Department of Education to permit a transgender student in one of the high schools access to girls' locker rooms. The suit also challenges the school district's policy of allowing students to use restrooms that correspond to their gender identity.

The 83-page complaint (full text) in Students and Parents for Privacy v. Department of Education, (ND IL, filed 5/4/2016), says that the school district was threatened with the loss of $6 million in federal funding if it did not agree to the arrangement. It alleges that the locker room agreement and restroom policy cause students to lose their constitutionally protected right of privacy by requiring them to have their partially or fully unclothed bodies exposed to persons of the opposite sex.  The complaint contends that this also violates students' right under Title IX to an education that is free from a hostile environment based on sex, and infringes parents' rights to control the upbringing and education of their children.

The suit also contends that the Department of Education acted contrary to law when it interpreted Title IX's reference to "sex" discrimination as including "gender identity." Chicago Tribune reported on the lawsuit.

Transgender Bathroom Bills Trigger Strong Responses

Two developments yesterday highlight the reactions to legislative initiatives to ban transgender individuals from using restrooms that match their gender identity.  As reported by the New York Times, the Justice Department yesterday sent a letter (full text) to North Carolina Governor Pat McCrory warning that compliance with North Carolina's recently enacted House Bill 2 places the state in violation of Title VII of the 1964 Civil Rights Act, and threatens millions of dollars in federal funding.  The letter says in part:

Access to sex-segregated restrooms and other workplace facilities consistent with gender identity is a term, condition, or privilege of employment. Denying such access to transgender individuals, whose gender identity is different from their gender assigned at birth, while affording it to similarly situated non-transgender employees, violates Title VII.

The Justice Department also told the University of North Carolina that compliance violates Title IX, and told the state Department of Public Safety that it amounts to a violation of the Violence Against Women Reauthorization Act.

Meanwhile, in Oxford, Alabama, the City Council voted 3-2 yesterday to rescind the public restroom ordinance that it passed last week.  (See prior posting.) The ordinance had not yet been signed by the mayor and so had not become law. As reported by Alabama Media Group, the ACLU was already planning a legal challenge, and the city attorney had warned that the ordinance as written might violate Title IX. The ordinance was a response to a policy announcement by Target stores that they welcome employees and customers to use restrooms and fitting rooms that correspond to their gender identity.

UPDATE: On May 2, the EEOC issued a Fact Sheet on Bathroom Access Rights for Transgender Employees Under Title VII of the Civil Rights Act of 1964. Corporate Counsel reports on the EEOC's action.

Alabama City Outlaws Restroom Use Conforming To Gender Identity That Differs From Birth Certificate

In the latest chapter in the "bathroom wars," on Tuesday the Oxford, Alabama City Council unanimously passed Ordinance No. 2016-18 (full text) barring anyone from using rest rooms or changing facilities that do not correspond to the gender stated on the person's birth certificate. A violation is punishable by a $500 fine and up to 6 months in jail.  As reported by the Anniston Star, Council's action came in response to last week's announcement by the department store chain Target that their employees and customers are welcome to use the restroom or fitting room facility that corresponds with their gender identity. Target has a store in Oxford.  Prosecutions under the new ordinance will only occur only if a violation is reported by a witness or committed in the presence of a police officer.  After passage of the ordinance, city council president Steven Waits read from a prepared statement, saying in part that the ordinance was enacted "to protect our women and children."

4th Circuit: Title IX Requires School Rest Room Access On Basis of Gender Identity

In a 2-1 decision today, the U.S. 4th Circuit Court of Appeals held that a Virginia school board's policy barring a transgender boy (who had not undergone sex-reassignment surgery) from using the boy's rest rooms at his school violates Title IX's ban on discrimination on the basis of sex.  The school board adopted the policy in order to overturn accommodations made by a high school for the student, and which had been implemented for 7 weeks without incident.  The school board policy called instead for alternative private facilities for transgender students. Citizens speaking in favor of the school board policy at a meeting considering it expressed fears about privacy, and even expressed concern that "non-transgender boys would come to school wearing dresses in order to gain access to the girls’ restrooms."

In G.C. v. Gloucester County School Board, (4th Cir., April 19, 2016), the majority opinion written by Judge Floyd held that the U.S. Department of Education's interpretation of its own regulations is entitled to deference. A DOE interpretation concluded that when schools separate students on the basis of gender, generally schools must treat transgender students consistent with their gender identity.  A concurring opinion by Judge Davis suggested that the appeals court should have entered a preliminary injunction against the school board instead of remanding the case to the trial court.  Judge Niemeyer dissenting argued in part:

This unprecedented holding overrules custom, culture, and the very demands inherent in human nature for privacy and safety, which the separation of such facilities is designed to protect. More particularly, it also misconstrues the clear language of Title IX and its regulations. And finally, it reaches an unworkable and illogical result.

AP reporting on the decision quotes North Carolina Law Professor Maxine Eichner who says that the decision also impacts North Carolina's recently enacted law regulating the use of public school rest rooms by transgender individuals.  North Carolina is in the 4th Circuit.

North Carolina Governor Issues Executive Order Emphasizing LGBT Rights Retained After H.B. 2

As previously reported, last month the North Carolina General Assembly passed, and Gov. Pat McCrory signed, House Bill 2 regulating the use by transgender individuals of bathrooms and changing facilities in public schools and government offices.  The new law also pre-empts local employment and public accommodation anti-discrimination laws and prohibits civil actions in state courts based on discrimination complaints filed with the federal EEOC. After, in the language of the New York Times, "withering criticism" since the law was enacted, yesterday Gov. McCrory issued (signing statement) Executive Order No. 93 (full text) going as far as possible within the new law to protect LGBT rights.

The Executive Order emphasizes that House Bill 2 did not pre-empt local laws on housing discrimination, and that it allows state and local governments, as well as private businesses and non-profits, to set non-discrimination policies for their own employees. The Order provides that:

North Carolina is committed to administering and implementing all State human resources policies, practices and programs fairly and equitably, without unlawful discrimination, harassment or retaliation on the basis of race, religion, color, national origin, sex, sexual orientation, gender identity, age, political affiliation, genetic information, or disability.

It also calls on state and local governments and colleges to provide single occupancy restroom accommodations for transgender individuals wherever practicable. It provides that when state property is leased by private entities, those private entities may control restroom and locker room policies. It calls for the state Human Relations Commission to submit an annual report to the governor, and calls on the legislature to restore a state cause of action for wrongful discharge based on unlawful employment discrimination.

Mississippi Legislature Sends Governor Broad "Freedom of Conscience" Bill

The Mississippi Legislature today gave final passage to H.B. 1523 (full text) and (adopted amendment). Titled Protecting Freedom of Conscience From Government Discrimination Act, the bill passed the Senate by a vote of 32-17 House by a vote of 69-44.

The statute, one of the broadest to date enacted by states, protects three separate beliefs if held on religious or moral grounds: (1) marriage is a union of one man and one woman; (2) sexual relations should be reserved to heterosexual marriage; and (3) gender is an immutable characteristic determined by anatomy and genetics at the time of birth.

The statute protects from any kind of adverse state action a religious organization that on one of these bases refuses to solemnize a marriage or refuses to provide services, accommodations, goods or facilities for a marriage.  It also allows religious organizations to use these beliefs in making employment decisions or decisions regarding the sale, rental or occupancy of housing facilities, or in providing adoption or foster care services.

The statute protects from adverse government action any adoptive or foster parents who guide or raise a child consistent with these beliefs.  It protects any person who refuses provide counseling or fertility services or treatment because of these beliefs (except for emergency medical treatment).

The statute goes on to protect anyone who refuses to provide specific kinds of wedding-related services because of these beliefs, including photography, wedding planning, printing, floral arrangements, dress making, hall or limousine rental or jewelry sales and services.  It also protects any person who imposes sex-specific policies based on these beliefs on students or employees or regarding access to rest rooms, locker rooms and showers.

The statute goes on to protect state employees who speak out on these issues in their private capacity or in the workplace to the extent other political, moral or religious beliefs can be expressed. It allows county clerks to recuse themselves from issuing marriage licences consistent with these beliefs, and allows judges and others to refuse to perform same-sex marriages.

According to CBS News, Republican Gov. Phil Bryant so far refuses to say whether or not he will sign the bill into law.

Suit Challenges North Carolina's Anti-Transgender Law

The ACLU, Equality North Carolina and three individuals yesterday filed a federal lawsuit challenging a statute enacted last week in North Carolina which bars transgender individuals from using school and public agency bathrooms that correspond with their gender identity.  The law also more broadly pre-empts local anti-discrimination laws. (See prior posting.)  The complaint (full text) in Carcaño v. McCrory, (MD NC, filed 3/28/2016) contends that the law was enacted for the purpose of disadvantaging members of the LGBT community and is based on animus against LGBT people.  Plaintiffs allege that the law violates the Equal Protection Clause and Title IX of the 1964 Civil Rights Act, and infringes their right to privacy and right to refuse unwanted medical treatment.  Wall Street Journal reports on the lawsuit.

UPDATE: North Carolina Attorney General Roy Cooper said at a news conference that he will not defend the state's new law against the challenge in this lawsuit.  He called the law a national embarrassment and unconstitutional.  Cooper is running against incumbent Republican Gov. Pat McCrory who signed the anti-transgender bill. (AP, BuzzFeed, 3/29/2016).

North Carolina Regulates Transgender Bathroom Use and Pre-Empts Local Anti-Discrimination Laws

In a hurriedly-called special session, the North Carolina General Assembly on Wednesday passed House Bill 2 (full text) regulating the use by transgender individuals of bathrooms and changing facilities in public schools and government offices.  The new law also pre-empts local employment and public accommodation anti-discrimination laws. Governor Pat McCrory signed the bill Wednesday night.

The new law requires any multiple occupancy bathroom or changing facility to be designated for and used only by individuals based on the biological sex that is stated on their birth certificate. However special accommodations, such as single occupancy bathrooms, may be made.  The law also declares that

the regulation of discriminatory practices in places of public accommodation is properly an issue of general, statewide concern, such that this Article and other applicable provisions of the General Statutes supersede and preempt any ordinance, regulation, resolution, or policy adopted or imposed by a unit of local government or other political subdivision of the State that regulates or imposes any requirement pertaining to the regulation of discriminatory practices in places of public accommodation.

The law includes a similar declaration regarding local employment discrimination ordinances, but permits local government regulations governing their own employees that are not in conflict with state law.

As previously reported, the hurried passage of the law was designed to prevent a recently enacted Charlotte non-discrimination ordinance from going into effect on April 1. In his signing statement (full text), Gov. McCrory said in part:

The basic expectation of privacy in the most personal of settings, a restroom or locker room, for each gender was violated by government overreach and intrusion by the mayor and city council of Charlotte. This radical breach of trust and security under the false argument of equal access not only impacts the citizens of Charlotte but people who come to Charlotte to work, visit or play. This new government regulation defies common sense and basic community norms by allowing, for example, a man to use a woman's bathroom, shower or locker room.

NBC News reports that many of the state's largest employers are opposed to the new law.

North Carolina Legislature Aims To Repeal City's Transgender Rights Ordinance

In February, the Charlotte, North Carolina City Council approved changes to the city's Non-Discrimination Ordinance.  According to a City Council press release issued in February, the changes "add marital and familial status, sexual orientation, gender expression and gender identity to the list of protected characteristics in the existing Non-Discrimination Ordinances." As reported then by Al.com, North Carolina Gov. Pat McCrory said he would fight the Ordinance that is scheduled to go into effect on April 1. Now the legislature is apparently poised to implement that fight in a special session of the legislature called for today.  Yesterday, Lt. Governor Dan Forest issued a press release announcing:

Senate and House leaders announced Monday they have obtained the necessary three-fifths majority in both chambers and will convene a special session on Wednesday to address a radical Charlotte City Council ordinance allowing men to share public bathrooms and locker rooms with young girls and women.

The announcement from the legislative leaders said: "We aim to repeal this ordinance before it goes into effect to provide for the privacy and protection of the women and children of our state." Human Rights Campaign and Equality North Carolina issued a release calling the special session a costly and outrageous step.

South Dakota Governor Vetoes Bill Restricting Transgender Students' Choice of Bathrooms

South Dakota Governor Dennis Daugaard yesterday vetoed a bill that would have prohibited public schools from allowing transgender students to use rest rooms and locker rooms consistent with their gender identity. Instead it would have required students to use facilities consistent with their anatomy and chromosomes at birth. (See prior posting.)  In his veto message (full text) Daugaard said in part:

If and when these rare situations arise, I believe local school officials are best positioned to address them.  Instead of encouraging local solutions, this bill broadly regulates in a manner that invites conflict and litigation, diverting energy and resources from the education of the children of this state.

Washington Post reports on the governor's veto.

Suit Challenges Virginia School's Addition of Gender Identity To Non-Discrimination Rules

As reported by the Washington Post, last week a suit was filed in state court in Virginia challenging the Fairfax County School Board's addition of "gender identity" to its non-discrimination policy.  The change was made to comply with federal interpretation of Title IX of the 1964 Civil Rights Act.  The complaint (full text) (Liberty Counsel press release) in Lafferty v. School Board of Fairfax County, (VA Cir. Ct., filed 12/21/2015), contends that the change violates a Virginia statute that prohibits local jurisdictions from enacting broader anti-discrimination protections than are accorded by state law. A state Attorney General's Opinion, however, had concluded that school boards do have the power to bar discrimination on the basis of sexual orientation and gender identity.

The suit was brought by the head of the Traditional Values Coalition and by an anonymous high school student identified in the complaint as Jack Doe.  The suit contends:

Because the new policy and code of conduct are not sufficiently defined, Jack Doe has no way of knowing whether he can, for example, question someone who appears to be a girl using the boys’ restroom or locker room, refer to someone by a certain pronoun or even compliment someone on his/her attire without being subject to discipline for “discrimination.”...

Jack Doe is terrified of the thought of having to share intimate spaces with students who have the physical features of a girl, seeing such conduct as an invasion of his privacy, invasion of fellow students’ privacy and a violation of the though[t] patterns and understanding about male and female relationships which are part of his cultural values. 

DOE Exemptions From Title IX For Religious Colleges Is Growing

Earlier this month, The Column reported that in the last 18 months, the Department of Education has granted waivers to 27 religious colleges and universities in 17 states from the Department's interpretation of Title IX that bars schools receiving federal funds from discriminating against transgender students.  (See prior related posting.) Nine other schools have exemption applications pending. A number of these schools have sought and received even broader exemptions from Title IX based on the school's religious tenets.  For example in February the Department of Education granted a broad waiver to Anderson University:

The University is exempt from these provisions to the extent that they prohibit discrimination on the basis of marital status, sex outside of marriage, sexual orientation, gender identity, pregnancy, or abortion and compliance would conflict with the controlling organization’s religious tenets.

Christian advocacy groups are providing training and sample documents for schools to use in applying for exemptions. [Thanks to Religion Dispatches for the lead.]

Commentary: Will We See A Repeat of the "Kim Davis Saga" Over Transgender Rights?

As momentum grows to add "gender identity" to anti-discrimination laws, an interesting shift in argument by opponents can be discerned.  Until recently, opposition focused primarily on privacy concerns.  In the referendum battle earlier this year over Houston's Equal Rights Ordinance, while opposition was centered in churches, it was expressed in terms of concern about "allowing men to enter women's restrooms and locker rooms-- defying common sense and common decency." (See prior posting.)

In recent days, however, we are seeing a subtle shift that begins to frame opposition to transgender rights as a religious liberty issue.  Earlier this week, Liberty Counsel filed an amicus brief (full text) on behalf of an organization known as Liberty Center for Child Protection in a 4th Circuit case involving the right of a Virginia school board to limit the use of sex-segregated locker rooms and restrooms on the basis of an individual's biological features. Liberty Counsel's press release describes its position as one that focuses on child protection:

Public schools adopting “gender identity” instead of biological sex abandons science, creates a hostile environment, and threatens the safety and well-being of children...

However language in the brief began to lay the foundation for a religious liberty argument by describing early researchers on transgender issues as individuals who had an "animus for Judeo-Christian sexual mores" and who blamed "Judeo-Christian principles, instead of early sexual trauma and mental illness for the distress suffered by 'transsexuals.'"

Then yesterday a lengthy online article (full text) by the conservative writer Ryan T. Anderson set out perhaps the clearest formulation yet of the religious liberty claim:

SOGI [Sexual Orientation and Gender Identity] laws threaten the freedom of citizens, individually and in associations, to affirm their religious or moral convictions — convictions such as that marriage is the union of one man and one woman or that maleness and femaleness are objective biological realities to be valued and affirmed, not rejected or altered. Under SOGI laws, acting on these beliefs in a commercial or educational context could be actionable discrimination. These are the laws that have been used to penalize bakers, florists, photographers, schools, and adoption agencies when they declined to act against their convictions concerning marriage and sexuality. They do not adequately protect religious liberty or freedom of speech.

To the extent that compliance with laws barring discrimination on the basis of gender identity is viewed as a violation of religious conscience, we could well see a repeat of the "Kim Davis saga," this time in the form of school principals and superintendents blocking restroom doors.

Day Care Teachers Tell EEOC Their Firing Over Treatment of Transgender Child Was Religious Discrimination

At a news conference yesterday, high-profile Houston, Texas attorney Andy Taylor said that he has filed a discrimination complaint with the EEOC on behalf of the manager of a day care center who says she was fired because of her treatment of a 6-year old transgender child, and on behalf of her co-worker who was also fired.  As reported by KPRC News and the Houston Chronicle, Christian author Madeline Kirksey was fired from her Children's Lighthouse Learning Center position after she refused to comply with the instructions of the girl's male same-sex parents who said that the child, who had enrolled at the beginning of the year as a girl, should now be treated as a boy and called by a new masculine name.  Kirksey said that her religious beliefs made her approval of the change impossible.  She also contended that she had a duty to protect the child from possible bullying, and objected to the change being made without parents of others in the class first being informed.  At the press conference, attorney Taylor said in part:

To inflict upon a little 6-year-old girl the heavy decision of her sexual identity is nothing short of child abuse..... Can you only imagine the reaction of a couple of dozen 6-year-olds when they learn that Sally is all of a sudden Johnny? They may think this is a cruel game of opposite day. And are we going to have little girls running into boys' restrooms and little boys running into girls restrooms?

A spokesman for the Learning Center said that Kirksey and her co-worker were fired for other reasons and that their attorneys are misrepresenting the facts of the case.

Malaysia's Federal Court Rules On Procedural Grounds Against Transgender Challenge To State Law

As previously reported, last November a 3-judge appeals court panel in the Malaysian state of  Negeri Sembilan struck down a state law barring Muslim men from wearing women's clothing. The appeal was brought by three transgender women who, a lower court had ruled, were required to wear men's clothing because they were born as males. The state appealed the ruling to Malaysia's Federal Court which yesterday set aside on procedural grounds the appeals court's November ruling. According to Free Malaysia Today, a five-judge panel of the Federal Court ruled that the challenge to the statute should have been decided initially by the Federal Court, rather than being brought to it on appellate review.

Pentagon Changing Ban On Service By Transgender Individuals

In a statement (full text) yesterday, Secretary of Defense Ash Carter announced that the military is changing its policy that currently bans service by transgender men and women.  He said in part:

The Defense Department's current regulations regarding transgender service members are outdated and are causing uncertainty that distracts commanders from our core missions.... Today, I am issuing two directives to deal with this matter. First, DoD will create a working group to study over the next six months the policy and readiness implications of welcoming transgender persons to serve openly.... At my direction, the working group will start with the presumption that transgender persons can serve openly without adverse impact on military effectiveness and readiness, unless and except where objective, practical impediments are identified. Second, I am directing that decision authority in all administrative discharges for those diagnosed with gender dysphoria or who identify themselves as transgender be elevated to Under Secretary Carson, who will make determinations on all potential separations.

Time reporting on the Pentagon's decision says that it is estimated that 15,500 transgender individuals are currently serving.  In his statement, Secretary Carter said: "transgender men and women in uniform have been there with us, even as they often had to serve in silence alongside their fellow comrades in arms." [Thanks to Mark Goldman for the lead.]