A Cook County, Illinois Judge approved a consent decree that will allow transgender people to change the gender on their Illinois birth certificates without undergoing genital surgery. The agreement is a result of a lawsuit filed by the American Civil Liberties Union last year on behalf of three transgender individuals. Lauren Grey, Victor Williams, and Nicholas Guarino all wanted to correct the sex designation on their birth certificates but either did not want or need genital surgery and as a result could not make changes to their documents.
The ACLU argued that the state’s requirement that a person have genital reconstruction surgery before being allowed to change their gender designation on their birth certificate excludes those sex changes that do not involve genital reconstruction or those who could not afford the procedure and creates unnecessary hurdles for transgender individuals seeking to have their identifying documents match their actual identities.
According to the ACLU, for 50 years Illinois allowed people who underwent gender confirmation surgery to change their birth certificate, but several years ago began interpreting the law to require genital surgery. After the lawsuit was filed the state changed its policy to eliminate the genital reconstruction requirement. The ACLU continued with the suit to prevent the state from later changing course yet again. The consent decree makes sure that happens.
“It is critical that our clients and others are able to get birth certificates that accurately reflect who they are without being required to undergo costly surgery that they may not want or need,” said John Knight, director of the Illinois ACLU’s Lesbian, Gay, Bisexual and Transgender Project. “The state never should have involved itself in these private decisions about medical care.”
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The agreement prohibits the state from denying a new birth certificate to someone just because he or she hasn’t undergone genital reconstruction and orders the health department to notify anyone who has been denied a change in sex designation that they are eligible for a new birth certificate. The new policy, while not mandating genital surgery specifically, does require some form of transition-related surgery, a sticking point for many activists, who have advocated against a surgical mandate in the policy.
Knight described the consent decree as an important first step but told the Windy City Times that the ACLU would likely push for an even better rule. “I think we will look at a way to either persuade the legislature or go back to court at some point, asking that the surgical requirement be removed completely,” Knight said.
The lawsuit is in response to the Department of Education's landmark November 2015 decision that Palatine-Schaumburg High School District 211 violated anti-discrimination laws when it refused to let a transgender student use the girls' locker room.
A lawsuit filed against Palatine-Schaumburg High School District 211 and the U.S. Department of Education (DOE) alleges that districtwide policies permitting a transgender student to use restroom and locker room facilities that align with her gender identity“trample students’ privacy and other constitutional and statutory rights by forcing 14- to 17-year old girls to use locker rooms and restrooms with biological males.”
In 2013, a transgender girl who goes by the moniker “Student A” filed a complaint with the Department of Education’s Office for Civil Rights (OCR), alleging that her school district’s refusal to grant her access to the girls’ locker room was discriminatory. The OCR sided with Student A, and it determined that District 211’s practice of requiring Student A to change in a separate area for gym class was discriminatory because it treated Student A differently from other girls.
The OCR also informed District 211 that the district could risk facing a federal lawsuit or losing approximately $6 million in federal funding annually if the district did not change its practice.
District 211 entered into an agreement settling the locker room dispute with Student A. This “Locker Room Agreement,” as it’s referred to in the suit, grants Student A the right to use the girls’ locker room as long as she agrees to use private changing stations inside it. In early December, the District 211 School Board approved the agreement by a vote of 5 to 2.
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That agreement, along with a previous decree from the district permitting all students to use school restrooms according to the students’ perceived gender identity (the so-called Restroom Policy), infringes on female students’ right to bodily privacy, according to the members of an unincorporated voluntary association—meaning not a formal organization—called Students and Parents for Privacy.
The lawsuit, which Students and Parents for Privacy filed in federal court on Wednesday, alleges that the Locker Room Agreement and Restroom Policy have caused some female students to “experience embarrassment, humiliation, anxiety, intimidation, fear, apprehension, stress, degradation, and loss of dignity.” It asks a U.S. District Court judge to order District 211 to reverse its policy.
The complaint states that the Department of Education exceeded its authority when it issued guidelines in April 2014 stating that “sex” in Title IX, the federal law that prohibits sex discrimination in schools, includes “gender identity.” Those guidelines explain that “Title IX’s sex discrimination prohibition extends to claims of discrimination based on gender identity or failure to conform to stereotypical notions of masculinity or femininity and OCR accepts such complaints for investigation.”
The lawsuit is in response to the DOE’s landmark November 2015 decision that District 211 violated anti-discrimination laws when it refused to let Student A use the girls’ locker room. That decision, which stemmed from the department’s 2014 guidelines, has already had a profound impact on the legal landscape.
Last month, the Fourth Circuit Court of Appeals ruled in favor of Gavin Grimm, a transgender student who wishes to use the boys’ restroom at his Gloucester County, Virginia high school, signaling that the high school’s anti-trans bathroom law is a violation of Title IX. Meanwhile, North Carolina, which just passed the anti-transgender HB 2, not only sits in the Fourth Circuit—and would therefore be subject to any legal principles coming from Grimm’s case—but was also hit with a threat from the U.S. Department of Justice Wednesday that if it implements HB 2, it risks a lawsuit and losing $861 million of its federal funding.
The lawsuit alleges that the DOE misinterpreted Title IX in 2015, and “threatened District 211 with the loss of $6 million of federal funding if it did not give a biologically male student (‘Student A’), who perceives himself [sic] to be female, the right of entry to, and use of, the girls’ locker rooms.” Plaintiffs misgender Student A throughout the complaint.
Plaintiffs say that the agreement is insufficient to protect the privacy of students, partly because, the complaint alleges, there’s no way to monitor whether Student A will change in the private changing room, as the Locker Room Agreement states, or change out in the open with the other girls.
In addition, the plaintiffs allege that the district’s policies violate their right to religious freedom under the Illinois Religious Freedom Restoration Act. The complaint states that some of the students “have a religious requirement that they practice modesty,” and “a sincere religious belief that they must not undress or use the restroom, in the presence of the opposite biological sex, and also that they must not be in the presence of the opposite biological sex while the opposite biological sex is undressing or using the restroom.”
“We do sympathize with children who have difficult personal issues to deal with, to work through,” said Students and Parents for Privacy member Vicki Wilson, according to the Daily Herald.
In a statement, Jeremy Tedesco, an attorney for the plaintiffs with Alliance Defending Freedom, said, “Students have an expectation of privacy in restrooms and locker rooms, and that expectation is violated when a school puts the opposite-sex student in those kinds of private and intimate facilities,” reported the Chicago Tribune.
Plaintiffs plan to seek an injunction to reverse the district’s policy permitting Student A to use the girls’ locker room.
The American Civil Liberties Union also issued a statement, calling the lawsuit “a sad development by groups opposed to fair and humane treatment of all students, including those who are transgender.”
District 211 Superintendent Dan Cates issued a statement saying the district “affirms and supports the identity of all our students,” according to the Daily Herald.
“The district has faithfully honored our agreement with the Office for Civil Rights, and our students have shown acceptance, support, and respect of each other,” the statement continues. “We have implemented the agreement without any reports of incident or issue. Individual changing stalls in our locker rooms are readily available to every student, and further accommodations that provide even greater privacy remain available upon request.”
A recent lawsuit filed by two transgender North Carolinians may offer an opportunity for the U.S. Supreme Court to expand the reach of the 14th Amendment’s Equal Protection Clause to include transgender people. In the lawsuit, Carcaño v. McCrory, Joaquín Carcañoand Payton McGarryhavechallenged the constitutionality of the bathroom provisions of HB 2, North Carolina’s newly passed law that, among other things, prohibits transgender people from using public restroom facilities that align with their gender identity.
The law singles out transgender people and denies them a benefit that cisgender people enjoy—the ability to use public restrooms consistent with their gender identity—and so it seems to be a fairly straightforward violation of the Equal Protection Clause, which prohibits singling out a specific group of people for mistreatment under the law. That said, the Court has not yet weighed in as to where gender identity discrimination fits into the Equal Protection Clause. The speed with which state legislatures are passing bathroom discrimination bills, however, suggests that it won’t be long before the Court is asked to do so. Without constitutional protection, more of these policies targeting transgender people will continue to be implemented throughout the country.
Despite a long history of unjust discrimination against transgender people, lower courts have time and again refused to deem them a protected class because, in their estimation, transgender people—or “transsexuals,” as much of the case law describes them—are not a “discrete and insular minority.”
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Since the Court first articulated the concept in the 1930s,it has developed hallmark characteristics to determine which “discrete and insular minorities”—otherwise known as “suspect classes”—require special assistance from courts when it comes to laws that discriminate against them, and how much assistance courts should render. These are groups that have historically been subjected to discrimination, groups that are a small percentage of the population and therefore in danger of tyranny by the majority, and groups with “immutable characteristics,” a term coined by the Court to describe things like race and gender.
Black people, for example, are a suspect class according to Supreme Court jurisprudence. Laws that target them for discrimination will rarely pass constitutional muster because the strict scrutiny standard, which requires that the law be narrowly tailored to promote a “compelling government interest,” is a difficult hurdle to surpass. In other words, if a law singles out Black people for different treatment, the government must have a damn good reason why, and the Court is going to start from the presumption that the government’s reason still isn’t good enough.
Women, on the other hand, are a “quasi-suspect class”: The Court has determined that laws targeting women for unequal treatment may pass constitutional muster, if the laws are substantially related to an “important government interest.”
But when it comes to transgender people, most courts have refused to call them a suspect or quasi-suspect class.
Determining that trans people should be protected by the courts does not require an academic discussion about the immutability of gender identity, however. All it requires is common sense.
The suicide attempt rate for transgender or gender-nonconforming people in the United States is 41 percent, compared to 4.6 percent among the overall population. The unemployment rate in the trans community is double what it is for the country as a whole. Violence against trans people, trans women of color in particular, is staggering, as are poverty levels. Transgender people aren’t adequately represented in government bodies, and due in partto their small numbers, they lack the political power to prevent laws that discriminate against them from being passed.
Just look at the way HB 2 was rushed through the North Carolina legislature: On February 22, the Charlotte City Council approved an ordinance that would amend existing public accommodations policies to include protection from discrimination based on “gender identity,” “gender expression,” and “sexual orientation.” A month later, after a quasi-emergency legislative session, Gov. Pat McCrory (R) was already signing a law stripping away those protections and preventing any other cities from enacting similar ordinances at a cost of approximately $42,000 to North Carolina taxpayers. The law is so apparently unconstitutional that Roy Cooper, North Carolina’s attorney general and Democratic gubernatorial candidate, refuses to defend it, calling it a “national embarrassment.”
This rush to strip LGBTQ people of rights is a case study in the rule of a tyrannical majority over a “discrete and insular minority.” Indeed, it is difficult to think of a group of people more deserving of the “suspect class” label than transgender people.
But for reasons that no court has been able to articulate satisfactorily, laws that discriminate against transgender people—some of the most vulnerable members of our society—have generally not warranted a stricter examination than rational basis review, which rarely results in legislation being struck down.
In 1977, for example, in a case called Holloway v. Arthur Andersen & Co., the Ninth Circuit Court of Appeals reasoned that “transsexuality” did not meet the indicia of a suspect classification because transsexuals are not a “discrete and insular minority” and because the plaintiff in that case did not establish that “transsexuality is an immutable characteristic determined solely by the accident of birth, like race, or national origin.”
Occasionally, lower courts have lumped gender identity in with biological sex, although trans and cis women can face different kinds of oppression.In a 2011 case, Glenn v. Brumby, the 11th Circuit Court of Appeals found that “discriminating against someone on the basis of his or her gender non-conformity constitutes sex-based discrimination under the Equal Protection Clause.” The terms “protected class,” “suspect class,” or “quasi-suspect class” are not found anywhere in the opinion.
Because of all that uncertainty, transgender people have often turned to suing under claims of employment discrimination in violation of Title VII, or education-based discrimination in violation of Title IX. And they’ve found success, even as the courts sidestep the protected class issue.
This is because a 1989 Supreme Court case, Price Waterhouse v. Hopkins, recognized a Title VII cause of action for discrimination based on an employee’s failure to conform to stereotypical gender norms. (Title VII and Title IX cases are often analyzed using the same set of legal principles.)
In 2004, in a case called Smith v. City of Salem, the Sixth Circuit Court of Appeals applied the Price Waterhouse theory to “transsexuals”: “[d]iscrimination against a plaintiff who is a transsexual—and therefore fails to act and/or identify with his or her gender—is no different from the discrimination directed against Ann Hopkins in Price Waterhouse, who in sex-stereotypical terms, did not act like a woman.”
However, this tactic is not always successful. In Johnston v. University of Pittsburgh, a transgender man was repeatedly sanctioned for using the men’s bathroom and locker room after being told that he was no longer permitted to use those facilities. He sued the university claiming discrimination under Title IX. The district court rejected his claim in March of last year, stating that the university’s policy refusing a transgender man access to the men’s locker room was based on the need to ensure the privacy of its students to disrobe and shower outside of the presence of members of the opposite sex. The court went on to note “[t]his justification has been repeatedly upheld by courts.”
As Harper Jean Tobin of the National Center for Transgender Equality and Professor Jennifer L. Levi of Western New England University School of Law pointed out in a 2013 law review article, however, “No court has ever held that there is any legal right to privacy that would be violated simply by permitting a transgender person to access a gender-specific facility that corresponds to his or her gender identity.”
For the past decade, there has been a movement toward recognizing transgender people as a protected class without any court having to actually say the words. This string of successes is partially due to the Obama administration’s federal agencies, which have implemented forward-thinking policies that apply to Title VII and Title IX claims. Without explicitconstitutional protection, trans rights are relegated to the whims of the legislative and executive branches. It’s as if courts recognize that transgender people are getting the short end of the equal protection stick, but have yet to follow that recognition to the next logical step.
In November of last year, a judge in New York became the first federal judge to rule that transgender people are a protected class. In Adkins v. City of New York, plaintiff Justin Adkins alleged that he had been treated differently than other Occupy Wall Street protesters who were arrested during a protest on the Brooklyn Bridge in 2011 because he is transgender. Adkins filed suit alleging equal protection violations.
The City of New York moved to dismiss the lawsuit: The City argued that transgender people are not a protected class under a 2009 case, Lopez v. City of New York, which held exactly that. Adkins’ equal protection claims, therefore, should be subject only to rational basis review, making it more likely that the lawsuit would be dismissed.
Adkins countered that the appropriate standard of review is intermediate scrutiny because discrimination against transgender people is a form of gender discrimination or, alternatively, because transgender people are a quasi-suspect class and his claims are subject to intermediate review on that basis.
The court sided with Adkins, but not on the basis—as with previous court rulings—that transgender discrimination is a form of gender discrimination. Instead, the court ruled that transgender people are a quasi-suspect class in light of the Second Circuit Court of Appeals’ decision in Windsor v. UnitedStates, the precursor to the national case eventually leading to the downfall of the Defense of Marriage Act (DOMA). In Windsor, the Second Circuit ruled that “homosexual people” were a quasi-suspect class on the basis of four factors: (1) gay people have suffered a history of persecution; (2) sexual orientation has no relation to ability to contribute to society; (3) gay people are a discernible group; and (4) gay people remain politically weakened.
In November of last year, the Department of Education issued a landmark decision for transgender rights in education, holding that an Illinois school district violated anti-discrimination laws when it did not allow a transgender girl student who participated on a girls’ sports team to change and shower in the girls’ locker room, as reported by my colleague Jessica Mason Pieklo.
And just last week, the Fourth Circuit Court of Appeals held that the lawsuit of a transgender high school student named Gavin Grimm challenging his school’s bathroom policy should move forward. The court did so after the Department of Education, under the Obama administration, released guidelines warning that school rules forcing transgender students into segregated bathrooms or bathrooms inconsistent with their gender identity would be considered a violation of Title IX. Because the federal appeals court depended on the agency guidance to make that ruling, Gavin Grimm’s lawsuit is an important step in firmly establishing statutory legal protections for transgender people while waiting for the Supreme Court to determine where they stand under the Equal Protection Clause.
Plenty of school districts across the country have followed the administration’s lead and created guidelines to ensure that transgender students can safely and peacefully use their preferred bathrooms. The federal government has adopted a policy that extends the Department of Education guidance and permits federal workers to access workplace facilities that align with their gender identity as a matter of “dignity and respect,” and to “provide a workplace that is free from discrimination whether that discrimination is based on race, color, religion, sex (including gender identity or pregnancy), national origin, disability, political affiliation, marital status, membership in an employee organization, age, sexual orientation, or other non-merit factors.”
Which brings us back to Carcaño and McGarry’s lawsuit challenging the bathroom provisions in North Carolina’s HB 2. When Windsor made its way to the Supreme Court, the Court, in an opinion authored by Anthony Kennedy, invalidated DOMA without saying whether gay people are a suspect class, and ignored the Second Circuit’s ruling that theyare a quasi-suspect class. Kennedy, as he is wont to do, framed the issue as one of “human dignity.”
It is no surprise, then, that the term “dignity” is peppered throughout Joaquin Carcaño and Payton McGarry’s complaint challenging HB 2 on equal protection grounds. Carcaño and McGarry are asking a district court in North Carolina to declare them members of a protected class entitled to heightened scrutiny. If the district court refuses, they will presumably ask the Fourth Circuit Court of Appeals. If that court also refuses, it will be up to the Supreme Court to explain how discrimination against transgender people as transgender people is no big deal and warrants only rational basis review, but discrimination against transgender people as a form of gender discrimination warrants heightened scrutiny.
In this case, there is another option for protecting LGBTQ people’s rights, though not one that may be useful for future assaults. If the Supreme Court continues to punt on whether LGBTQ people are a protected class or finds that permitting transgender people to use the appropriate restroom and locker room facilities somehow implicates a heretofore undiscovered legal right to privacy, then it is in this context that Anthony Kennedy’s dignity jurisprudence, which was also the linchpin of his majority opinion in Obergefell v. Hodges, will do quite nicely: Where is the dignity in forcing transgender people to use a bathroom that doesn’t align with their gender identity?