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The past week has been bad for the U.S. government’s fight for basic legal protections for transgender people. On Sunday night, a federal district judge issued a ruling in the case that Texas and twelve other states brought against the federal government. Just like the Title VII ruling last week involving a funeral home’s discrimination against a transgender employee, this decision is both broad and disturbing.
Here, the thirteen states brought the case after the U.S. Department of Education and U.S. Department of Justice issued a guidance letter stating that the government would interpret the federal protections against sex discrimination in employment (Title VII of the Civil Rights Act of 1964) and education (Title IX of the Education Amendments of 1972) to prohibit discrimination based on gender identity, and therefore to cover discrimination against transgender individuals. The judge ruled that being transgender is not protected under Title VII and Title IX or the federal regulations implementing them; and the court therefore enjoined the government from “initiating, continuing or concluding any investigation based on [the government’s] interpretation that the definition of sex [in those laws] includes gender identity.” The court also ordered that this injunction preventing the government from protecting the rights of transgender people “should apply nationwide.”
The court was wrong. The opinion states that the government’s interpretation of the term “sex” to include gender identity cannot stand because it “cannot reasonably be disputed” that when the statutes and federal regulations at issue were first enacted, “sex” meant only “the biological and anatomical differences between male and female students as determined at their birth.” But the language that Congress chooses for a statute or a government agency chooses for a regulation almost never precisely explains every issue that will arise when the government actually perform its required task of enforcing the law. The whole point of guidance letters like the one at issue in this case is to allow the government to explain its understanding, for the benefit of the entities that it is regulating.” Here, guidance letters helpfully explain that the government understands gender identity to fall within the broader umbrella of “sex.”
That view is the right one. Title VII and Title IX are intended to stop discrimination, and thus should be interpreted broadly to serve their remedial purposes. The Supreme Court has already said as much. In the 1998 case of Oncale v. Sundowner Offshore Services, the Court held that it can violate Title VII’s prohibition against sex discrimination for men in the workplace to harass another man for acting insufficiently ‘manly’ according to conventional sex stereotypes. The Justices reasoned:
[M]ale-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII. But statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.
The point, of course, is that our civil-rights laws are written broadly and generally, with the expectation that courts and government agencies will interpret and apply them to new situations, always with an eye to the basic purpose of stamping out discrimination.
In enjoining the government from enforcing the law to bar discrimination against transgender individuals, the district court on Sunday simply ignored the Supreme Court’s admonition. And if that error weren’t enough, the judge declared that his ruling, from a court with jurisdiction in a single small part of North Texas, will apply to the government’s actions nationwide—notwithstanding that a federal court of appeals has already held that the government’s interpretation of the law is the correct one.
This case is big, but what’s worse is that it is only one case in a concerted effort to ensure that transgender people do not share the same rights under the law as everyone else. The day after this decision came out, Texas filed another lawsuit, purposefully in front of the very same judge, challenging on religious grounds the Affordable Care Act’s requirement that doctors provide proper medical services to transgender people on the same terms as they serve everyone else.
At Americans United we will continue to fight to make sure that religion is not used, either implicitly or explicitly, as a cudgel to deny anyone, including transgender people, fundamental protections under the law. Keep up with Protect Thy Neighbor, and we will keep you informed as these cases progress through the courts.
Have you been denied a service based on someone’s claim that a religious belief provides a legal right to discriminate? Contact us. We’re here to help.