The American Civil Liberties Union in a press release notes the 4th U.S. Circuit Court of Appeals in Richmond ruled the Gloucester County School District’s policies that prohibited students from using bathrooms and locker rooms that did not correspond with their “biological gender” and denied them transcripts that correspond to their gender identity are unconstitutional. The 4th Circuit in its 2-1 decision also said the regulations violate Title IX of the Education Amendments of 1972.
Gavin Grimm was a sophomore at Gloucester County High School when he filed a federal lawsuit against the district’s bathroom policy.
The 4th Circuit in 2016 ruled in Grimm’s favor.
The U.S. Supreme Court was scheduled to hear oral arguments in his case in 2017, but the justices remanded it to the 4th Circuit after President Trump rescinded guidance to public schools that said Title IX requires them to allow trans students to use bathrooms based on their gender identity.
U.S. District Court Judge Arenda L. Wright Allen of the U.S. District Court for the Eastern District of Virginia last August ruled in favor of Grimm. The Gloucester County School District appealed the decision.
The 4th Circuit issued its decision two months after the Supreme Court in a landmark ruling said Title VII of the Civil Rights Act of 1964 bans employment discrimination based on gender identity and sexual orientation. The Supreme Court in 2019 declined to hear a case that challenged a Pennsylvania school district’s policy that allows trans students to use bathrooms based on their gender identity.
“All transgender students should have what I was denied: The opportunity to be seen for who we are by our schools and our government,” said Grimm in the ACLU press release. “Today’s decision is an incredible affirmation for not just me, but for trans youth around the country.”
ACLU of Virginia Legal Director Eden Heilman also welcomed the 4th Circuit ruling.
“For the last five years, Gavin has been fighting for transgender students to ensure no one else deals with the discrimination he faced in high school,” said Heilman. “The court rightfully stood with him to rule that trans students deserve to go to school with dignity, respect, and equal protection under the law.”
Trevor Project Vice President of Advocacy and Government Affairs Sam Brinton in a statement described the ruling as a “tremendous victory for transgender equality.”
“When transgender and non-binary students are denied access to school facilities or documents consistent with their gender identity, they are not only denied basic dignity and respect, but also fundamental human rights,” they said. “This decision reaffirms that anti-transgender discrimination is, in fact, illegal under the law.”
Two transgender teenagers are suing Arizona over its blanket ban on paying for transition-related healthcare for Medicaid recipients.
The claimants, 17-year-old D.H. and 15-year-old John Doe, are bringing a class-action lawsuit alleging that their civil rights are being violated by Arizona’s prohibition on transition-related surgeries.
Arizona is one of 10 states that explicitly bans coverage for transition-related treatments to transgender Medicaid recipients, according to Metro Weekly.
The National Center for Lesbian Rights filed the complaint against the Arizona Health Care Cost Containment System on August 6.
“D.H. and John bring this lawsuit on behalf of themselves and similarly situated individuals to challenge Arizona’s categorical prohibition of coverage of medically necessary treatments for gender dysphoria, specifically, male chest reconstruction surgery,” the complaint reads.
The pair argue that top surgery is a medically necessary treatment for their gender dysphoria and that by denying them this healthcare, Arizona is causing them physical and psychological harm.
The National Center for Lesbian Rights argues that given the Supreme Court’s recent historic decision making it illegal to fire workers for being gay or trans, Medicaid’s ban on transgender healthcare constitutes sex discrimination.
The lawsuit comes a year after a Wisconsin judge ruled that Medicaid must cover transgender healthcare, including hormone therapy and gender confirmation surgeries such as chest surgery.
The US district judge made the ruling in the case of four trans Wisconsin residents, who were challenging a 1997 provision that excluded coverage of “transsexual surgery” for Medicaid recipients.
The judge ruled that the provision was discriminatory.
Lawsuit against Arizona’s Medicaid ban on transgender healthcare.
Both of the claimants in the case against Arizona currently wear binders.
D.H. started wearing a binder to flatten his chest aged 12. He says this helps with his gender dysphoria but significantly impairs his ability to function, with the pain and discomfort caused by wearing the binder interfering with his ability to focus on school and homework.
Both D.H.’s paediatrician and his therapist have recommended he get top surgery, but this was denied by Medicaid because in Arizona, there’s been a categorical ban on transition-related coverage since 1982.
John also wears a binder to alleviate his gender dysphoria, which according to the lawsuit is “tight and restrictive”.
“Even with the binder, John feels uncomfortable being outside without layers of clothing. He wears a hooded sweatshirt nearly every day, including in the summer.
“John’s chest also hinders his social interactions. For example, John wears his binder and a t-shirt when at the pool, often having to answer uncomfortable questions about why he insists on wearing a t-shirt in the water.”
John’s healthcare team have also recommended he get top surgery, which again he can’t because of Arizona’s ban on transition healthcare.
The lawsuit says: “Arizona disregards the transition-related health care needs of Medicaid’s transgender beneficiaries. In doing so, Arizona exposes transgender people to significant and avoidable harms to their health and well-being, in violation of the US Constitution and federal law.”
It alleges that Arizona’s ban violates two provisions of the Medicaid Act: that states must provide “early and periodic screening, diagnostic and treatment’ for individuals under 21 before medical conditions become more complex and treatments become more costly; and the act’s comparability requirements, which say that any medically necessary treatment that would be given to one individual cannot be arbitrarily denied to another.
The National Center for Lesbian Rights is asking for the state to pay for the pair’s top surgeries now, before the court case begins.
An Idaho judge has granted an injunction against enforcement of the state’s discriminatory law excluding trans athletes from the student sports teams corresponding to their true gender.
The anti-trans bill, HB500, was signed into law by Republican governor Brad Little in the midst of the pandemic in March, alongside its sister bill HB509 that bars trans people from changing the gender marker on their birth certificate.
In June, a judge ruled that HB509 is a violation of transgender people’s constitutional rights, in a lawsuit filed against Idaho by LGBT+ advocacy group Lambda Legal.
And on Monday (August 17), another lawsuit against the anti-trans laws saw victory as a judge granted an injunction against enforcement of HB500 pending a case against it being heard in court.
District court judge David Nye said that the state’s interest was not justifiable but rather “an invalid interest of excluding transgender women and girls from women’s sports entirely”.
Nye’s order recognises that both HB500 and HB509 were not motivated by legitimate policy goals but purely “motivated by a desire for transgender exclusion”, said the Human Rights Campaign, one of the organisations fighting Idaho’s laws in court.
“Today’s decision is a huge, positive step forward for transgender athletes in Idaho and around the country,” said Alphonso David, president of the Human Rights Campaign.
“Everyone should be able to play sports, and gender identity should not be a barrier to participation.
“We’re hopeful that the court will ultimately make the right decision to strike down HB500 in totality, so that athletes such as Lindsay Hecox and others can continue to excel at the sports they’ve poured themselves into, without having their identities used as a wedge against them.”
Idaho anti-trans laws would put athletes at risk of genital exams.
HB500 would place an outright ban on trans girls and women playing on female sports teams, and would place all female athletes at risk of invasive genital examinations to “prove” that they are not trans before being allowed to play.
Judge Nye’s decision comes as athletes in Idaho begin preparing for the sports season ahead – including Lindsay Hecox, a cross-country runner on Boise State University’s women’s track team and one of the plaintiffs suing Idaho over its anti-trans law.
Before the judge granted the injunction against HB500, Hecox would have been prohibited from participating in the upcoming athletic season.
This would have put Idaho in conflict with the National Collegiate Athletic Association’s own trans-inclusive policy.
As the judge noted, HB500 puts Idaho in “stark contrast to the policies of elite athletic bodies… which allow transgender women to participate on female sports teams once certain specific criteria are met”.
Idaho is the first and only state to categorically ban trans women from participating in women’s sports.
Idaho officials’ latest attempt to ban transgender people from changing the gender on their birth certificates violates a court order issued two years ago, a federal judge said.
U.S. Magistrate Judge Candy Dale first ruled in 2018 that a law barring the birth certificate changes was unconstitutional, and she banned state officials from implementing it. Earlier this year, Republican lawmakers passed new legislation that did largely the same thing.
That law signed by Republican Gov. Brad Little went into effect on July 1. It set strict criteria for changing gender on a birth certificate, including a requirement that a person first obtain a court order, and only allowed people to seek the court order if the sex listed on their birth certificate was mistakenly entered, entered fraudulently or under duress.
As a result, the state Department of Health and Welfare created procedures to implement the new law, including revising an application form and the department’s instructions for changing the sex listed on a birth certificate.
In her order Friday, Dale said the new procedure does the same thing as the old one by effectively preventing transgender people from changing the sex on their birth certificates.
“The plain language of the statute, as quoted, forecloses any avenue for a transgender individual to successfully challenge the sex listed on their Idaho birth certificate to reflect their gender identity,” Dale wrote.
Lambda Legal represented two transgender women who filed the original lawsuit that led to Dale’s first ruling. The advocacy group successfully argued the state’s ban on birth certificate changes for transgender people violated their constitutionally protected right to privacy, liberty and freedom from compelled speech.
“It is astonishing that the Idaho Legislature and Gov. Little plowed forward with resuscitating this dangerous and archaic ban in direct defiance of multiple court orders that repeatedly ordered the government to stop discriminating against transgender people,” said Nora Huppert, an attorney with Lambda Legal. “What was discriminatory in 2018 remains discriminatory today.”
Spokespeople with the Department of Health and Welfare and the governor’s office did not immediately respond to requests for comment.
Another anti-transgender law passed this year also is being litigated. It bars transgender and intersex girls and women from competing in women’s sports. Boise State University student Lindsay Hecox is suing the state in federal court, contending the law is discriminatory and would prevent her from trying out for the women’s cross country team because she is transgender.
Two transgender teens sued Arizona’s Medicaid agency Thursday, alleging their civil rights are being violated by the state health insurance program’s ban on gender-affirming surgeries.
The suit, filed Thursday in an Arizona federal courthouse, seeks to establish a class action on behalf of the teens — known only as John Doe, 15, and D.H., 17, and other transgender Arizonan Medicaid recipients under age 21 who seek chest reconstruction as treatment for a diagnosis of gender dysphoria. The complaint estimates there are at least 100 Arizonans who would be affected by the suit.
The suit defines the class as “individuals who have been unable and will be unable” to obtain coverage through the Arizona Health Care Cost Containment System “for medically necessary male chest reconstruction surgery because of the [ban], and as a result, have faced or will face delayed or denied access to these medically necessary treatments.”
The claims say the state’s 1982 ban on “gender reassignment surgeries” violates the Affordable Care Act’s anti-discrimination provisions, the Medicaid Actand the Equal Protection Clause of the 14th Amendment to the U.S. Constitution.
According to the suit, the two came out as transgender years ago and since then have faced significant challenges as puberty began to change their bodies. It also states the reliance on chest binders to create a more masculine appearance forced D.H. to abandon his beloved hobby of dance and resulted in John Doe wearing a heavy hoodie through Arizona’s sweltering summers.
Both teens’ physicians recommended chest reconstruction surgery, and the state’s 1982 ban on Medicaid funding for “gender reassignment surgeries” means that as Medicaid recipients, they are ineligible for the medically necessary surgery even if a doctor recommends it, according to the suit.
Asaf Orr, an attorney working on the case and the director of the National Center for Lesbian Rights’ Transgender Youth Project, said there is “no legitimate justification for Arizona’s refusal to provide this critical care to transgender Medicaid recipients.”
“Instead, excluding that care creates unnecessary barriers that prevent transgender young people from thriving in every aspect of their lives and can cause lifelong harms,” he said in a statement.
In June’s landmark Supreme Court decision Bostock v. Clayton County, Georgia, the high court found that the Civil Rights Act’s ban on employment discrimination “on the basis of … sex” also bans employment discrimination on the basis of sexuality and gender identity.
“In Bostock, the United States Supreme Court unequivocally held that the definition of ‘sex’ under federal law includes discrimination against transgender people,” Orr wrote in an email to NBC News. “By maintaining and enforcing a categorical exclusion for surgical treatment for gender dysphoria, AHCCCS is impermissibly discriminating against transgender Medicaid recipients on the basis of sex and, as a result, the Court should enjoin AHCCCS from denying coverage under that exclusion.”
The suit notes that Medicaid requires that recipients under age 21 receive “Early and Periodic Screening, Diagnostic and Treatment” so that major “medical, vision, dental, and hearing” problems are diagnosed and treated early in life. It then states that “[s]urgery to treat gender dysphoria, including male chest reconstruction surgery” is such a service.
Heidi Capriotti, a spokesperson for the Arizona Health Care Cost Containment System, declined to comment.
President Trump’s own HIV/AIDS advisory council adopted a resolution Thursday urging his administration not to implement a new regulation that would enable discrimination against transgender patients in health care.
The measure, which the Presidential Advisory Council on HIV/AIDS adopted unanimously, cites as reasons to scrap the anti-trans rule the recent U.S. Supreme Court decision in Bostock v. Clayton County, which found anti-LGBTQ discrimination is a form of sex discrimination under the law, and the Trump administration plan to beat HIV/AIDS by 2030.
“Be it resolved, in light of the recent Supreme Court ruling, PACHA urges the Secretary to apply the same definition of discrimination ‘on the basis of sex’ to healthcare and not move forward with implementing OCR’s rule changes to Section 1557 of the Affordable Care Act that are slated to go into effect on August 18, 2020,” a draft copy of the resolution says.
In the event the Department of Health & Human Services moves forward with the rule, the resolution calls on the Office of Civil Rights to “have a clearly defined system” to report instances of LGBTQ people being denied care.
Days before the Bostock decision in June, HHS made the rule final, vacating protections under a 2016 Obama-era rule prohibiting discrimination in health care and health insurance on the basis of sex stereotyping and transgender status. The Obama-era regulation was based on Section 1557 of the Affordable Care Act, which bars discrimination on the basis of sex in health care.
PACHA adopted the resolution with limited discussion. Carl Schmid, co-chair of the Presidential Advisory Council on HIV/AIDS and executive director of HIV+Hepatitis Policy Institute, said he’d “fully support” the measure.
Justin Smith, an Atlanta-based HIV/AIDS activist and director of the Campaign to End AIDS, introduced the measure and said it came about based on previous talks with the HHS Office of Civil Rights, which gave the council vague assurances in a written response deemed insufficient in light of the Supreme Court decision.
“There have been some really important changes in our legal landscape,” Smith said. “So, back in June, the Supreme Court ruled that under Title VII of the Civil Rights of 1964, that employment discrimination against lesbian, gay, bisexual and transgender folks on the basis of sex is actually against the law, which could have some profound implications for this proposed rule change to Section 1557.”
In a legal sense, nothing had practically changed with the Trump administration’s rollback because U.S. District Judge Reed O’Connor in Texas in 2016 issued a nationwide injunctionbarring the U.S. government from enforcement of the Obama-era rule. The Trump administration later declined to appeal that court order before deadline.
Roger Severino, director of the Office for Civil Rights at HHS, defended the rule change as necessary in response to the 2016 court injunction in a statement last month to media outlets.
“The gender identity and termination of pregnancy provisions of the 2016 rule were held unlawful and unenforceable by a federal court in December 2016 and a court vacated that language in October 2019,” Severino said. “Further, it was the Obama, not Trump, administration that decided to exclude sexual orientation as a protected category in this health care rule a mere four years ago.”
But the final rule, nonetheless, prompted a flurry of lawsuits from LGBTQ legal advocates who say vacating the protections contravenes the law, not just on the grounds of the Bostock decision, but constitutional claims of equal protection and due process.
In response to one lawsuit filed by Lambda Legal, U.S. Judge James Boasberg in D.C., an Obama appointee, held a hearing Monday to consider a preliminary injunction against the measure. Boasberg, who asked parties whether HHS’ hands were tied in issuing the anti-trans rule, said he’d wait for the U.S. government to file an additional brief before rendering a decision, which he said will likely not come down before the rule takes effect on Aug. 18.
According to the 2015 U.S. Transgender Survey, transgender respondents also encountered high levels of mistreatment when seeking health care. One-third of those who saw a health care provider in the past year said they had at least one negative experience related to being transgender, such as being verbally harassed or denied treatment.
Additionally, 23 percent of respondents said they didn’t seek necessary health care due to fear of being mistreated as a transgender person, and one-third didn’t go to a health care provider when needed because they could not afford it.
Meanwhile, lawsuits are continually filed against hospitals, many of them religiously affiliated, for refusing to grant transition-related care, such as gender reassignment surgery, to transgender patients. Just last month, the American Civil Liberties Union sued University of Maryland St. Joseph Medical Center in Baltimore for cancelling a scheduled hysterectomy for a transgender patient as part of a transition plan.
Assistant Secretary of Health Brett Giroir addressed the council before the adoption of the resolution, expressing a commitment to continue the Trump administration plan to beat HIV/AIDS by 2030. He didn’t mention the anti-trans rule, nor was he asked about it.
“We are constantly looking for ways to expand the HIV message, all throughout my offices and throughout the agency,” Giroir said. “This is really, as we said, it’s not owned by one specific group, it’s got to be a whole of government, and really a whole of society approach.”
Giroir announced HHS will expand the program for free PrEP access to the underinsured with TrialCard, which will be responsible for current and new enrollees starting Nov. 1. Additionally, Giroir said HHS will launch online Aug. 17 the first national HIV epidemic analysis dashboard to keep track of progress toward reaching the goal of ending the epidemic.
The AIDS council during the meeting also unanimously approved two other resolutions. One calls for increased uptake in the “Ready, Set, PrEP” program, a Trump-era plan that providesfree PrEP to the uninsured, as well as data collection on the location, race, ethnicity and LGBTQ status of the estimated 1,000 users. The other resolution seeks increased funds in the time of COVID for entities seeking to help with HIV, including Ryan White programs, state and local government and HIV testing.
Trans prisoners in a New York county were delivered a stunning victory Wednesday (August 5) when a roster of LGBT+ activist organisations secured them a vital but simple right: To be incarcerated as the correct gender.
The landmark legal settlement was described by activists as having secured some of the most “robust policies in the country” to better protect trans folk in custody in the western Steuben County.
The case was brought forward after 43-year-old trans military veteran Jena Faith was sentenced to a month in Steuben County Jail in 2019. While initially kept in the women’s division of the jail, she was later transferred to the men’s where she experienced weeks of verbal and physical humiliation and abuse from inmates and guards alike.
Trans woman tossed in men’s jail: ‘No one should ever be subjected to the cruelty and harassment I endured.’
Faith filed a lawsuit with the TLDEF after her rattling experience in a men’s facility. Trapped in the tight, cramped cells with male prisoners, she detailed in a report to the American Civil Liberties Union (ACLU) how inmates harassed her, guards misgendered her, and told of how she was denied hormone therapy.
These range from housing inmates in line with their gender identities and training prison staff to respect inmates’ pronouns to giving access to clothing, toiletry and grooming products and appropriate medical care.
Transgender Legal Defense & Education Fund (TLDEF) and the New York Civil Liberties Union hope that the new policies will offer a blueprint for other prisons across the state and the US.
“No one should ever be subjected to the cruelty and harassment I endured.
“Everyone housed in detention facilities deserves to be treated with dignity and respect, including transgender people. I hope my case will help others, not only in Steuben County, but also across New York and beyond.”
Efforts by the Obama administration to ensure trans convicts were protected from sexual abuse and assault were unwound by president Donald Trump in 2018.
Rosa Diaz and her daughter were riding their motorcycles through rural Brawley, California, this year when they noticed a young person who appeared lost walking down the town’s main street. Diaz, who runs the only LGBTQ resource center for miles, sensed that the person might be in need of support.
She told her daughter to continue ahead, and Diaz made a U-turn.
“I asked her for her name,” and the person shared a male name, Diaz said in an interview. “I said, ‘Is there another name that you prefer?’ And that’s when she told me, ‘Well, I like Marilyn.'”
Diaz asked her whether she needed anything. “I need a new wig,” Diaz recalled Marilyn saying, gesturing to her worn clothes and hairpiece. Diaz gave her a business card, and Marilyn promised to call her after the weekend. Diaz’s team found her a wig, but the call never came.
“I didn’t know about Marilyn again until I was called regarding her death,” Diaz said.
Marilyn Cazares, 22, was found dead last month in an abandoned building in Brawley, about a half-hour north of the Mexican border. It has been a particularly deadly year for trans people — especially trans women of color. In 2019, 27 trans people died because of violence in total. In 2020, the number has already reached 25, according to the Human Rights Campaign.
In July alone, there were six violent deaths of trans and gender-nonconforming people across the U.S. — all but one of them trans Black or Latinx women — making it the deadliest month so far for this vulnerable community.
In the weeks following her encounter with Cazares in February, Diaz and her small team at the Imperial Valley LGBT Resource Centertried to reach out to Cazares. But they didn’t have her last name or any other information about her. Since her death, family and friends have spoken out about a young woman who lived her truth despite being bullied, ridiculed and violated by members of her community. Her family said they believe her death was a hate crime.
Brawley police are investigating Cazares’ death as a homicide, and Diaz said the community is hungry for answers.
Mindy Garcia, Cazares’ aunt, told NBC affiliate KYMA of Yuma, Arizona, which serves the Brawley area, that her niece was “very brave,” “very outspoken” and “very loved.”
“She was very beautiful,” Garcia added.
An openly hostile environment
Diaz, who grew up in Imperial County, where Brawley is located, came out as lesbian in her 40s. She describes the area as one that at best lacks LGBTQ resources and at worst is an environment that’s openly hostile to lesbian, gay, bisexual, transgender and queer residents.
She started a support group in 2014 after she had nowhere else to turn for a sense of community — and people began turning up in large numbers.
“People who came to this group were telling me, ‘You know, we appreciate what you’re doing, but I need counseling, I need hormone therapy, I need artificial insemination,'” she said. “I wasn’t prepared for all of that.”
But within six months, she had founded the Imperial Valley LGBT Resource Center. She said she has had to “tread lightly” for it to be viewed as a reputable community organization. It’s still the only LGBTQ center in Imperial County, which includes seven cities and about 180,000 residents.
“This is where I began to hear stories,” Diaz said of the center. “Those who were a little flamboyant and very comfortable with themselves … they were considered to be crazy, weird, even evil to some extent.”
She said she’s certain Cazares experienced that kind of treatment in her short lifetime.
“According to what I heard from the family — and because I know my community — Marilyn or anybody that could appear as if they’re one gender but identify as another gender are ridiculed,” she said. “They are seen as people with a mental illness, or, you know, people that are not right.”
She said LGBTQ people in Imperial Valley are pushed out of their families, their churches and their communities. She also said Cazares’ death marks the second high-profile homicide of a Latina trans woman from Brawley, after the murder of trans teen Gwen Araujo in 2002.
“The community is angry, of course, because we know that trans women are being killed all over,” Diaz said. “A lot of people believe that these things only happen in big cities, and here, it has hit home.”
Diaz emphasized the need for LGBTQ education in communities like Brawley, where, she said, many residents are unaware of how their LGBTQ neighbors might struggle. Since her death, Cazares has been misgendered in the media — even by members of her family. But Diaz said her goal is to lead with education and information rather than attacks, especially for working-class people who are still learning.
“It’s a sad event,” Diaz said. “But it’s also an opportunity to really honor Marilyn and to let the family know: ‘We remember her like this, because this is who she was.'”
Rep. Jennifer Wexton (D-Va.) is leading a group of congressional lawmakers in formal comments against a proposed Trump administration rule allowing homeless shelters to refuse to accept transgender people consistent with their gender identity.
“It is absolutely shameful that in the midst of a pandemic and with a record number of Americans unemployed, when access to safe housing is more important than ever, the administration is focused on attacking the basic rights of transgender Americans,” Wexton said Thursday in a Zoom call with reporters.
Formally made public July 24 in the Federal Register, the proposed rule allows homeless shelters with single-sex facilities to place transgender people consistent with sex assigned at birth, rather than gender identity.
The proposal downplays the idea such actions would be discriminatory by setting up a referral system: Single-sex homeless shelters can send transgender people to other shelters, for these single-sex shelters to house transgender people according to sex assigned at birth.
As pointed out by Katelyn Burns at Vox, the proposed rule has detailed language to aid homeless shelters in determining whether an individual is transgender, such as making assumptions based on ‘height’, ‘facial hair’ and whether or not they have ‘an Adam’s apple.’
Rep. Mike Quigley (D-Ill.) said on the conference call Carson years ago promised only delays in implementing an Obama-era rule against anti-transgender discrimination in homeless shelters, but then reversed himself by saying changes are coming, just being withheld, because members of Congress won’t like them.
“Secretary Carson’s words proved prophetic as under his and President Trump’s leadership, the administration moved to completely gut core housing discrimination protections, such as HUD’s disparate impacts and affirmative fair housing rules,” Quigley said. “That wasn’t enough. HUD has announced a new proposed rule that would enable shelters to discriminate against trans individuals based on shelter staff suspect an individual’s biological sex may be different from the way they self-identify.”
The proposed rule also disregards the U.S. Supreme Court’s recent decision in Bostock v. Clayton County, which determined anti-transgender discrimination is a form of sex discrimination, thus illegal in the workplace under Title VII of the Civil Rights Act of 1964. The rule has applications to all federal laws against sex discrimination, including the Fair Housing Act.
HUD justifies the legality of the proposed rule by asserting homeless shelters aren’t under the purview of the Fair Housing Act, although one legal expert said on the conference call that analysis is incorrect.
Sasha Buchert, senior attorney with Lambda Legal, said the proposed rule is “on very shaky legal ground” not just because of the Supreme Court decision, but also rulings from appellate courts, state and local measures against anti-trans discrimination and questions under the U.S. Constitution.
“If you spend five minutes going through the case law, courts apply a case-by-case analysis when deciding whether or not the Fair Housing Act applies to shelters,” Buchert said. “It’s a legal question as to whether they’re considered dwellings, and there are at least two circuit courts that have held that shelters are considered dwellings under the Fair Housing Act, and therefore subject to that, so their analysis is just wrong.”
The Trump administration has previously disregarded public comments against anti-transgender policy. HHS made final a rule under Section 1557 of the Affordable Care Act enabling health care providers and insurance companies to refuse service to transgender people despite more than 120,000 comments in opposition to the proposal.
Wexton, nonetheless, said public comments against HUD’s anti-trans rule are still important for other reasons.
“Public comment is always important because even if it’s ignored by the administration, it is something that can be pointed to in the lawsuit that will inevitably arise out of this rulemaking to not be allowed to go forward,” Wexton said. “It is important that the public be heard and make sure that people make their voices known that they object to this discriminatory rule.”
In terms of legislative actions against the proposed rule, Wexton cited legislation she sponsors called the Ensuring Equal Access to Shelter Act, which she said has passed the House Financial Services Committee, but has yet to come up for a floor vote.
Quigley said legislation that would defund the rule is also part of pending T-HUD appropriations legislation, but that hasn’t obtained a vote in the Senate, nor is it clear whether President Trump would sign it into law.
Rep. Mary Gay Scanlon (D-Pa.) said on the conference call the Equality Act — which has passed the House, but has been bottled up in the Senate — would also reaffirm discriminatory measures against transgender people in housing are illegal.
“Here we are, 430 days since the House passed the Equality Act, and this rule is just one more demonstration of why we need [Senate Majority Leader] Mitch McConnell to take it up and we need to push it through the Senate,” Scanlon said.
Publication of the proposed rule in the Federal Register officially started the clock for a 60-day comment period. Assuming the Trump administration sticks with the measure as proposed, it’s expected to be made final in the fall.
The U.S. House voted Thursday to approve an amendment introduced by Rep. Jackie Speier (D-Calif.) to defund President Trump’s transgender military ban as part of major defense spending legislation.
Lawmakers approved the amendment by voice vote as part of a block of amendments the House Rules Committee approved for consideration during debate over the fiscal year 2012 defense appropriations bill.
Jennifer Dane, executive director of the Modern Military Association of America, said in a statement after vote undoing the transgender ban would foster an inclusive military.
“As our nation faces seemingly unprecedented challenges, it’s crucially important that the military return to an inclusive policy that allows any qualified patriot to serve,” Dane said. “With this vote, the U.S. House of Representatives just sent a powerful message that bigotry and discrimination should have no place in our armed forces. We urge the full Congress to ensure this critically important amendment is passed.”
The vote comes nearly three years after President Trump tweeted out the policy on July 26, 2017, saying he’d bar transgender people from serving from the military “in any capacity.” Joe Biden, the presumptive Democratic presidential nominee, has said he’d reverse the ban upon his election and allow transgender people to serve openly in the military.
Asked this week by the Washington Blade whether he’d reconsider the transgender military ban, Trump claimed he couldn’t hear the question. The White House has subsequently the Trump administration has no plans to change the policy.
The vote marks the third time the House under Democratic control has voted against the transgender military ban. The chamber also approved a resolution introduced by Rep. Joe Kennedy III (D-Mass.) against the policy and a Speier amendment to the fiscal year 2021 defense authorization bill that would reverse the ban, although that language didn’t make it into final package approved by Congress.