Already (potentially) headed to the Supreme Court, it seems the rights of trans youth are headed for a circuit split. But the holding pattern in the meantime is not pretty.
Trans rights activists and the Obama Administration came up against another road block on Sunday after a federal appeals court blocked the administration’s policies protecting transgender students and workers, and issued a nationwide injunction against enforcing the administration’s policies regarding bathroom use by trans people. The move comes just a few weeks after the Supreme Court took up their own trans bathroom case, filing an injunction to “preserve the status quo” while the case is being considered. The problem is the status quo is often not friendly to trans folks, and it never has been—but without a more concrete solution there’s not likely to be much change.
The latest decision stems from the administration’s guidelines for schools issued last May. They stated that schools—including sports teams, housing, fraternities, and sororities—must allow transgender students to use the bathroom or locker room that corresponds to their gender identity. In the Obama administration’s eyes, Title IX prohibits sex discrimination in education, and that extends to discrimination based on gender identity.
However in the months since the rules were enacted, that position has been challenged. The administration says its reading of civil rights laws is correct, and any schools that don’t abide are running on the wrong side of federal law and their funding can be called into question. 11 states and their (more conservative) leaders, on the other hand, think this enforcement is wrong, as well as “illegal federal overreach.”
“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,” the states’ complaint stated.
And now they have some judicial backing there: In a temporary injunction signed by U.S. District Judge Reed O’Connor on Sunday, the Northern District of Texas held that Title IX “is not ambiguous” about sex being defined as “the biological and anatomical differences between male and female students as determined at their birth.”
It’s a decision that contradicts a decision from April of this year by the Fourth Circuit, who overturned a lower court’s decision and ruled in favor of a transgender student. At the time it seemed like a big win for trans-rights, allowing the student to use the bathroom of their gender identity and not an isolated gender neutral space—until, at the beginning of this month, SCOTUS issued a stay to the appeals court’s decision until the high court has reached a decision on certiorari.
“In light of the facts that four Justices have voted to grant the application referred to the Court by The Chief Justice, that we are currently in recess, and that granting a stay will preserve the status quo (as of the time the Court of Appeals made its decision),” wrote Justice Stephen Breyer, who voted to “grant the application as a courtesy.”
But courtesy seems like the wrong word here. It would’ve sufficed to say that Breyer was intrigued if the legal issues in this case were up to snuff, especially considering other courts had sided with the Obama administration on their interpretations of the policies. Considering the wide-reaching implications of a victory for the administration’s analysis and guidelines—effectively expanding existing civil rights protections which could bleed over from Title IX to things like the Fair Housing Act or workplace—it makes sense that the Supreme Court might want to at least consider weighing in on one of the forefront hot button topics of our time.
But to call it a courtesy, seems to flatten the struggle of the trans community that has brought this issue so far.
The notion that trans people make bathrooms unsafe is a myth, widely debunked, and utterly the opposite of the truth. There has never been a case of voyeurism or violence against cisgender (people whose gender identity corresponds with their genitalia) occurring in states with legal protections for trans people. There have, sadly, been plenty of examples of transgender folks being harmed while living out. And yet many anti-trans-rights activists still use that initial myth to paint transgender people as “perverts,” thus giving opposition to laws that ban discrimination against gender identity in the workplace, housing, public accommodations, and education.
It’s there (there being everywhere) that transgender people are at risk: In 2013 the majority of hate crime violence was perpetrated against transgender women. More than ⅔ of transgender respondents in one study said they’d been victims of violence at either work or school. Transgender people are 1.7 times more likely to be survivors of sexual assault than their cisgender counterparts. And in “Beyond Stereotypes: Poverty in the LGBT Community,” Brad Sears and Lee Badgett explain that transgender people are “four times as likely to have a household income under $10,000 and twice as likely to be unemployed” as most people in the U.S. Ninety percent report being harassed while on the job, and nearly a fifth of the transgender population has been homeless at some point in their life.
The status quo, for transgender folks, is just this: Hiding who they are, or feeling wildly unsafe almost everywhere they go.
If the law doesn’t support the rights (or it seems debatable, as is the case with the 11-state suit) then it doesn’t support it. It may fly in the face of what the Department of Education, EEOC, and Department of Justice have been advocating for years, but it may also, as far as the law is concerned, be the truth. But at what point are we arbitrarily drawing lines in the sand about what types of discrimination are appropriate and which are not? At what point do transgender identities get to be legitimized by the law and seen as those intended to be covered by a law, even if they weren’t originally counted among those protected?
It’s clearly not as simple as saying that lawmakers need to enact protections—since they have been for years—but until there’s either a more substantial interpretation or protection, trans citizens are left holding the check for “maintaining the status quo.”