Bathroom Restrictions on Transgender Students Violate the U.S. Constitution and Title IX
At NWLC, we’re committed to fighting back against sex discrimination in schools, workplaces, and elsewhere. That’s why we’re proud to highlight two recent amicus briefs that we filed in support of transgender students and their counsel at Lambda Legal Defense Fund and the ACLU LGBT & HIV Project. In Adams v. School Board of St. Johns County, Florida on appeal to the Eleventh Circuit and in Parents for Privacy v. Dallas School District on appeal to the Ninth Circuit, the federal district courts ruled on the right side of history, holding that discrimination against transgender students was sex discrimination and so violated the law. Now, the school district (in Adams) and a parents’ group (in Parents) are appealing these two decisions to the federal appeals courts.
“Blocking transgender students’ access to bathrooms consistent with their gender identity” is a mouthful, and we are calling it what it is: Sex discrimination.
In the amicus briefs, filed with assistance from firms Mayer Brown (in Adams) and DLA Piper (in Parents), NWLC highlights the legal point that the federal protections against sex discrimination includes protections for transgender students – and that women’s rights and the rights of transgender students to be free from sex discrimination are necessary for our collective safety and dignity.
In both cases, the opposition cites allegedly protective concerns for the privacy and safety of cisgender women and girls—the same broken logic that has long been used to keep women out of jobs and people of color out of public facilities. These concerns are based on unfounded fears and built on harmful stereotypes. We’ll say it again, louder, for the people sitting in the back of the courtroom: There is no evidence that allowing transgender students to use bathroom facilities that correspond to their gender identity puts anyone else at risk.
However, excluding transgender students from bathrooms that correspond with their gender identities can cause both physical and emotional harm to transgender students, who are already more likely to suffer bullying and harassment. What’s even worse: the Department of Education announced last year that it would not be investigating complaints in which transgender students were denied access to bathrooms consistent with their gender identity.
Meet the crew.
NWLC led these briefs alongside 50 organizations, including, for example, the American Federation of Teachers, AFL-CIO, the Center for Constitutional Rights, Girls, Inc., LationJusticePRLDEF, National Asian Pacific American Women’s Forum, the National Association of Social Workers and the National Center for Transgender Equality. Also, in Adams, over 32 companies—including Apple, Airbnb, Microsoft, and Kaiser Permanente—signed onto Human Rights Campaign’s amicus brief, and a coalition of 21 attorney generals, also filed an amicus brief urging the Eleventh Circuit to affirm the district court’s ruling in favor of transgender students. Further, the NAACP Legal Defense Fund also submitted an amicus brief in Adams, highlighting the ways in which restrooms have often been used as the setting for race-based discrimination based on anxiety informed by stereotypes, much like the baseless arguments also being used to discriminate against transgender students today. Likewise in Parents, many groups showed up in support of transgender students including by joining NWLC’s amicus brief, and we also wanted to highlight that a group of transgender students also submitted their own brief to the Ninth Circuit.
This isn’t our first rodeo.
NWLC has also led other amicus briefs in matters in support of transgender students including in the Supreme Court in Gloucester School Board v. G.G. and in the Seventh Circuit in Whitaker v. Kenosha Unified School District. Similarly, in Zarda v. Altitude Express, Inc., we led an amicus brief in an employment matter where the Second Circuit ultimately concluded that sexual orientation discrimination is a form of sex discrimination under federal employment law.
And we’ll be right there for the related legislative fight, too.
NWLC also supports legislative efforts to make it more explicit under federal law that the protections against sex discrimination include protections on the basis of sexual orientation and gender identity. The bipartisan Equality Act will provide explicit protections against discrimination based on sexual orientation and gender identity in education, employment, housing, credit, and Federal jury service, taking us closer to a reality where we can have dignity for everyone in this country. The Equality Act ALSO closes a significant gap in existing federal civil rights laws by adding protections against sex discrimination (including sexual orientation, gender identity, and pregnancy discrimination) in public places. The Act would also update existing accommodations related protections on the basis of race, religion, national origin to apply to additional public spaces such as when riding on public transportation and at shopping malls – and the new protections against sex discrimination (including pregnancy, would apply in those contexts as well.
Bottom line: NWLC will keep on supporting litigation efforts and legislative efforts until all of us are protected under the law from sex-based discrimination.