This Week in Nondiscrimination: Victories Across the Board For Transgender People Nationwide

By Shane Stahl • July 28, 2018 • 12:33 pm

This week in nondiscrimination, we saw major gains for transgender students across the country, as three court decisions found that anti-transgender school bathroom policies were a violation of Title IX of the Civil Rights Act, which prohibits sex discrimination, interpreting the law to also include discrimination based on sexual orientation and gender identity. Michigan’s Attorney General also wrote an opinion out of step with the Michigan Civil Rights Commission in terms of that state’s existing civil rights law, and the notorious anti-LGBT group Alliance Defending Freedom requested review from the U.S. Supreme Court in an employment discrimination case. This is a collection of highlights regarding nondiscrimination news for the penultimate week of July 2018!

OREGON

On Tuesday, a federal judge ruled in favor of transgender students in the Dallas, Oregon school district, upholding the district’s existing transgender-inclusive bathroom and locker room policy and rejecting an argument that the rule violated other students’ privacy.

In his decision, Judge Marco A. Hernandez of the Federal District Court in Portland said that transgender students should be allowed to use bathrooms and locker rooms that correspond to the gender they identify with, stating in part: “Forcing transgender students to use facilities inconsistent with their gender identity would undoubtedly harm those students and prevent them from equally accessing educational opportunities and resources.”

Hernandez’ ruling follows several others around the country, which have interpreted Title VII of the Civil Rights Act, which prohibits sex discrimination, to also include sexual orientation and gender identity.

FLORIDA

On Thursday, July 26, US District Court Judge Timothy J. Corrigan issued a decision in Adams v. School Board of St. John’s County, Florida. The decision affirms dignity for Drew Adams, a transgender boy who had been denied access to the boys’ restroom at his school outside of Jacksonville, Florida. The school district’s policy prohibited transgender students from the restrooms that matched their gender identity – and the court found that the policy violated the Equal Protection clause of the Fourteenth Amendment and Title IX of the Education Amendments of 1972.

Corrigan’s ruling stated in part: “Drew Adams is just like every other student at Nease High School…When it comes to his use of the bathroom, the law requires that he be treated like any other boy.”

The case was filed in June 2017 by Lambda Legal on behalf on Drew Adams as a challenge to Nease High School’s refusal to allow him to use the boys’ bathroom. A trial in Drew Adams’ case concluded in February 2018, marking the first bench trial in the United States focused on transgender students facing discrimination related to restroom access at school.

PENNSYLVANIA

On Thursday, the Third Circuit Court of Appeals issued a revised ruling in the case of Doe v. Boyertown after denying the plaintiffs’ request for an en banc rehearing. The revised ruling keeps in place the core of the previously issued decision from May, determining that a Pennsylvania school district’s transgender-affirming policy does not violate anyone’s privacy.

The unanimous panel decision from May, revealed after just a few minutes of deliberation, declared that anti-transgender discrimination violates Title IX. The en banc revised decision underlines that the facts of the Boyertown case did not require a determination on Title IX.

The decision read in part: “We agree with the School District’s position that barring transgender students from restrooms that align with their gender identity would itself pose a potential Title IX violation…We need not decide that very different issue here. We note only that in 2017, the Seventh Circuit held that a school district’s policy of prohibiting transgender students from using bathrooms and locker rooms consistent with their gender identity violated Title IX because it discriminated against transgender students by subjecting them to ‘different rules, sanctions, and treatment than non-transgender students.’ “

WISCONSIN

A ruling on Wednesday from U.S. District Judge William Conley granted a preliminary injunction against an existing state Medicaid rule that barred the program from covering medically necessary care for transgender people, including gender confirmation surgery; the ruling was on behalf of two transgender Wisconsin natives, Cody Flack of Green Bay and Sara Ann Makenzie of Baraboo, who sued in April, saying Wisconsin’s rule denying coverage for gender confirmation surgery violated the Affordable Care Act and their equal protection rights.

Conley wrote in his decision: “The likelihood of ongoing, irreparable harm facing these two individual plaintiffs outweighs any marginal impacts on the defendants’ stated concerns regarding public health or limiting costs.”

Wisconsin is currently one of ten states whose Medicaid agencies prohibit coverage of medically necessary services for transgender people.


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