Saturday, May 7, 2016
When DOJ sent a letter to North Carolina Gov. Pat McCrory informing him that the state's anti-transgender law could cost the state billions in federal education funding, some experts saw the move--in conjunction with the EEOC's issuance of a fact sheet confirming that it's a violation of federal civil rights law to deny a transgender individual access to the restroom that corresponds with his/her gender identity--as a more focused effort by the Obama administration to secure greater protections for transgender people. The argument proved poignant. As Caitlin Emma reports in this recent Politico article from which the title of this post comes:
The divisive and politically combustible issue of bathroom access for transgender individuals is about to become further inflamed, as the Obama administration is expected in coming weeks to aggressively reinforce its position that transgender student rights are fully protected under federal law, sources told POLITICO.
With the Justice Department already locking horns with North Carolina over the state’s so-called bathroom bill, the administration plans to reaffirm its view that robust protections for transgender students are within the existing scope of Title IX, a federal law that prohibits sex-based discrimination in federally funded education programs and activities. Multiple agencies are expected to be involved.
It’s a step LGBT advocates have wanted the federal government to take for years. The legal protections include providing transgender students with not just access to bathrooms and locker rooms that align with their gender identity but also affording them protections from bullying, harassment and sexual violence, and a right to privacy concerning their transgender status and transition...
Advocates and legal experts say that Title IX’s lack of clarity could get wrapped up with a host of other legal issues, like the constitutional right to privacy and varying policies at every level of government, and result in transgender rights landing in some capacity before the nation’s highest court — just like what happened in the lead-up to the Supreme Court’s historic gay marriage verdict.
New guidance on Title IX represents a natural outgrowth of the administration’s aggressive agenda on gender equity and civil rights. In April 2014, guidance issued by the Education Department on sexual violence explicitly mentioned that transgender students are protected under Title IX. LGBT advocates saw it as an important moment for the transgender community, but have wanted the administration to go even further in clarifying the law.
Additional guidance will likely raise the ire of many Republicans in Congress, however. Some lawmakers, like Senate HELP Chairman Lamar Alexander (R-Tenn.), have already slammed the administration for federal overreach...
Lower courts have been divided on the issue. A federal district court last year ruled against Gavin Grimm, a transgender male student in Virginia whose attorneys argued that it was his right under Title IX to use the boy’s bathroom at his high school. A federal appeals court overturned that district court’s ruling earlier this year, representing a major legal victory for Grimm and LGBT advocates. The school board is appealing the ruling.
While the appellate court’s decision was a victory, it didn’t explicitly say that the Obama administration’s interpretation of Title IX is the right one. The two-judge majority came close, however, saying the lower court should have deferred to the administration’s guidance on the issue...
If other federal appellate courts show they’re divided, it will likely catch the Supreme Court’s attention, said David Cohen, a law professor at Drexel University.
For more on the battle over North Carolina's law, see here.