During the Obama administration, transgender people made unprecedented progress toward equality. President Obama signed an executive order protecting transgender federal employees from discrimination. The Department of Justice, Department of Education, and Equal Employment Opportunity Commission all recognized that discrimination against transgender people violates federal laws prohibiting sex discrimination in employment, education, and housing. And Attorney General Loretta Lynch pledged the full weight of the federal government in support of transgender people when she declared: “We see you; we stand with you; and we will do everything we can to protect you going forward.”
Since taking office, the Trump administration has been doing everything in its power to turn back the clock on the advances transgender people have made. A month into the new administration, the Departments of Justice and Education withdrew the Obama administration’s guidance to schools, which clarified that federal law requires schools to treat transgender students equally in all respects, including equal access to restrooms and other facilities. This summer, President Trump took to Twitter to abruptly announce that he was reversing the policy allowing transgender people to serve openly. Trump’s announcement was immediately opposed by military leaders, including the Chairman of the Joint Chiefs of Staff. And just recently, Attorney General Jeff Sessions announced that the Department of Justice would no longer argue in court cases that federal sex discrimination laws protect people from being fired or harassed because they are transgender.
While many transgender people understandably feel anxious and uncertain in the wake of these attacks on our community, it’s important to understand that we are not powerless. The law protects us in many ways that the Trump administration cannot easily undo, and we have options when faced with hostility and discrimination at work or at school.
For more than a decade, a near-unanimous consensus has emerged among federal courts that the Civil Rights Act of 1964 and other federal laws outlaw discrimination against transgender people because it is a form of sex discrimination. This law is so well established at this point that few courts would disagree. And it is the courts, not the President or the Justice Department, that are responsible for deciding discrimination cases.
The EEOC also has made clear that it does not agree with the Attorney General’s new position on transgender discrimination and will continue to treat discrimination against transgender people as sex discrimination. The EEOC is still urging any transgender person facing discrimination on the job to file a complaint, and it continues to investigate and take action against employers who discriminate. Just last month, the EEOC argued an important case in which it sued a Michigan funeral home for firing one of its funeral directors after she told her employer of her plans to transition at work.
The courts have also ruled over and over again that Title IX, the federal law barring sex discrimination in education, requires schools to protect transgender students from discrimination and harassment by school staff and other students. In one recent case we at the National Center for Lesbian Rights filed, a federal district court ruled that Title IX prohibits an Ohio School District from treating a 12-year old girl as if she were a boy because she is transgender. As a result of this ruling, the student is now able use the girl’s restroom and otherwise feel safe and protected at school. In addition to these federal protections, 21 states have laws providing specific protections against discrimination based on gender identity in at least some areas, such as employment, housing, education, and public accommodations. The Trump administration can do nothing to undercut these important state-level protections.
And while the President’s military ban dealt a blow to transgender service members who continue to serve with honor and distinction, the LGBT community has quickly swung into action to challenge the ban. In August, we at NCLR, along with our colleagues at GLBTQ Legal Advocates & Defenders, filed the first legal challenge to the ban on behalf of a brave group of current and prospective service members. We have since joined a second challenge, and two other challenges have been filed as well.
In these cases, we are asking the courts to immediately halt the President’s cruel and discriminatory betrayal of transgender service members. Many service members came out as transgender to their commanders in reliance on the military’s policy allowing open service. That policy was adopted last year after careful study and with the full support of the professional uniformed and civilian military leadership. The President’s reckless action now threatens these service members with dismissal and undermines the military itself by depriving it of highly trained and capable staff, many of whom have served for a decade or more.
Another recent—and ominous—sign of the administration’s attitude toward transgender people is the Attorney General’s issuance on October 6 of a memo urging federal agencies to broadly interpret existing federal laws that protect the religious freedom of government workers, religious organizations, and others. While the exact impact of this new guidance remains to be seen, there is good reason to be concerned that in the coming months we will see federal regulations that allow discrimination against transgender people under the guise of “religious freedom.”
Although transgender people are under assault like never before, we need to remain strong and remind ourselves how far we have come and how many tools we still have to fight for equality. Despite the Trump administration’s unrelenting animosity, we still have the law on our side in many areas, and we can trust the courts to take our claims for equality seriously.
Shannon Minter is Legal Director for the National Center for Lesbian Rights