Why Every Single State Suing to Promote Anti-Trans Discrimination Should Know Better
“Everyone is entitled to their own opinions, but they are not entitled to their own facts.” This old piece of political wisdom is one that those currently spreading fear about transgender people would do well to keep in mind.
At last count, officials from 13 states have joined in a sweeping lawsuit against a half-dozen federal agencies, objecting to an advice letter from the Education Department which clarified that transgender students are protected under sex discrimination in Title IX, as well as similar statements from federal agencies on employment over a the last few years. These states' leaders have now asked for an immediate court order against the agency guidance, asserting that legal protections and school policies supporting transgender people - indeed, the basic fact of transgender people using restrooms - is a brand new threat. It is neither.
In fact, in many of these states, federal rulings in their own federal circuit or their own state law support the principles laid out by the Department. In fact, many have successful local policies showing the “new” federal guidelines aren’t new at all and work well in practice. And, in fact, some of the state officials who now say they’re standing up for local control have actually blasted local communities or even banned them from adopting local policies that support transgender people. Let’s walk through some of the facts each state is ignoring:
Alabama and Georgia are in the 11th federal judicial circuit, whose appeals court ruled five years ago that discrimination against transgender people is inherently sex-based discrimination under the Constitution. That case—involving an employee of the Georgia legislature—said that abstract fears about sharing a restroom with a transgender person cannot justify discrimination.
Arizona is in the Ninth Circuit, which ruled nearly two decades ago that discrimination against transgender people violates federal sex discrimination laws. The Ninth Circuit specifically said that the kind of arguments Arizona is advancing now—such as that Congress didn’t have transgender people specifically in mind—were barred by Supreme Court precedent.
Kentucky and Tennessee are in the Sixth Circuit, which ruled twice, over a decade ago, that the 1964 Civil Rights Act protects transgender people. That helps explain why the Kentucky attorney general refused to join the case (Governor Matt Bevin signed on). A Kentucky high school--whose principal just won an award from the state’s school leader--was actually cited by the Education Department for having a successful local policy that helped inspire the federal guidelines. Also, Tennessee officials are being hypocritical: they say this lawsuit is about restoring local control, but Tennessee has already prevented actual local control from being respected in the state: the state government banned cities from adopting their own nondiscrimination laws in 2011.
In one of the most puzzling moves, Gov. Paul LePage of Maine joined the lawsuit, albeit without his attorney general’s support. Maine’s attorney general likely did not join for three key reasons. First, Maine is in the First Circuit, which ruled in 2000 that federal sex discrimination laws protect transgender people. Second, Maine’s own state laws have expressly protected transgender people for a decade. And third, Maine’s own high court ruled two years ago that Maine students have the right to use restrooms consistent with their gender identity. That’s working out just fine in Maine by the way, and regardless of how this case works out, the state law and policies respecting trans students will stay the same.
Mississippi Governor Phil Bryant also jumped in without the support of his attorney general, while Louisiana Attorney General Jeff Landry joined the case over the objections of a governor who says he was not consulted. Mississippi schools superintendent Cary Wright said she would follow the federal guidelines until state leaders pressured her to backtrack. They join Texas in being the only states actually suing in their own circuit—as well as in consistently scoring last in national education rankings.
Oklahoma (along with Kansas, who has signalled it may join the case) is in the Tenth Circuit, which issued an anomalous ruling a decade ago that opponents of equality like to cite. It disagreed with every other recent appeals court, saying transgender people aren’t protected under the Civil Rights Act, and citing precedents that are no longer good law. But the same ruling recognized that if transgender people were in fact protected (as other courts say they are), then banning them from restrooms consistent with their identity would probably be discriminatory.
Texas Attorney General Ken Paxton recruited other state leaders to sue in Texas with him because they knew they wouldn’t win in their own circuits. But while Texas state officials say they’re for local control, when Fort Worth schools chose to adopt a local policy similar to the federal guidelines, Lt. Gov. Dan Patrick called for the superintendent to resign.
Utah overwhelmingly passed a law expressly protecting transgender people from employment discrimination just last year, following the lead of many of its cities and school districts. Utah law specifically provides that accommodations for transgender people should be consistent with their gender identity—something Governor Herbert signed into law a year ago, but seems awfully upset about now.
West Virginia is in the Fourth Circuit, which last month ruled that the Education Department’s interpretation of Title IX as protecting transgender students, including in restrooms, is a reasonable interpretation of current law—pretty much the opposite of the lawsuit’s claim that it is made up out of whole cloth. Apparently not satisfied with the governing law in its own backyard, West Virginia is seeking a different result elsewhere by joining this Texas suit.
Wisconsin had a discriminatory anti-transgender law overturned in federal court (related to the treatment of transgender prisoners) five years ago, but that’s not stopping the state from embarrassing itself again. Nor is the fact that Wisconsin schools representing nearly 50,000 students already have policies mirroring the federal guidelines that are working just fine, with the Shorewood School District lauded as an example by the Education Department.
Finally, North Dakota says it may recruit states in the Eighth Circuit to bring their own pro-discrimination lawsuit. Officials may not be aware that the premises of such a suit were rejected by the Eighth Circuit over a dozen years ago. There, the court said simply sharing a restroom with a transgender woman did no harm whatsoever to a complaining co-worker and she therefore could not sue over it (but was free to use a different restroom herself).
In sum, every single one of these states should know better. While they’re seeking to capitalize on the fact that most Americans still say they don’t know a transgender person, the facts and the law—not to mention fairness and history—are not on their side.