While the current legislative season is seeing a horrifying record number of anti-transgender bills, there were three wins this week: the U.S. Department of Justice (DOJ) issued a memo affirming that Title IX prohibits discrimination on the basis of gender identity and sexual orientation, contrary to what the Trump administration had said; the governor of Arkansas vetoed a bill that would have prevented transgender minors from receiving gender-affirming medication or surgery; and the NCAA president has spoken in support of transgender youth in sports.
At the DOJ
The DOJ memo (PDF), written by Principal Deputy Assistant Attorney General Pamela S. Karlan of the Civil Rights Division, says that Bostock v. Clayton County, the 2020 U.S. Supreme Court decision that prohibited discrimination in employment based on sex, also prohibits discrimination based on sexual orientation and gender identity. This rescinds guidance from the Trump administration that had claimed it didn’t.
Let’s look a little more closely—watch the Roman numerals carefully. Back in 2016, the Obama administration issued guidance (PDF) that said discrimination against transgender students on the basis of gender identity violates Title IX, a civil rights law passed in 1972 that prohibits sex-based discrimination in any school or education program that receives federal taxpayer money. In 2017, the Trump administration’s Department of Education withdrew that guidance, citing “significant litigation regarding school restrooms and locker rooms.” The focus on bathrooms and locker rooms was a red herring, as I explained in a post at the time.
In 2020, the Bostock ruling said that Title VII of the Civil Rights Act of 1964, which prohibits discrimination in employment based on sex, also necessarily prohibits discrimination based on sexual orientation and gender identity. The Trump administration then looked at whether Bostock applied to education as well as employment. In other words, did it impact the interpretation of Title IX, which was enacted as a follow up to the Civil Rights Act? The Trump administration concluded that the term “sex” in Title IX only includes “biological sex, male or female,” and therefore transgender students were not protected under Title IX.
The current DOJ’s memo, however, cites President Biden’s Executive Order from January that says Bostock’s reasoning applies to other laws that prohibit sex discrimination “so long as the laws do not contain sufficient indications to the contrary.” The DOJ writes, “The Executive Order directs agencies to review other laws that prohibit sex discrimination, including Title IX, to determine whether they prohibit discrimination on the basis of gender identity and sexual orientation. We conclude that Title IX does.” Boom.
Governor Asa Hutchinson’s (R) veto of the anti-trans bill in Arkansas is welcome, albeit provisional; as the ACLU tweeted yesterday, “This isn’t over yet. We are watching closely to see whether the legislature overrides the veto.” Chase Strangio, deputy director for Transgender Justice at the ACLU, tweeted that even if the bill is overridden, however, “This moment is hugely important and a testament to so many people who put their privacy and their safety on the line to organize and defend trans lives.” Until the threat of a veto from the majority Republican legislature is past, though, this legislation remains one of the most potentially harmful anti-trans bills out there. An overwhelming medical consensus is that gender-affirming care helps, not harms, transgender students.
If you live in Arkansas, contact your legislators now and tell them not to override the veto.
[Update: 3:10 p.m. ET, 4/6/2021: The Arkansas legislature has overridden the veto, and so this heinous bill has passed. Strangio tweeted in response: “We will see you in court you cruel cruel people.”]
In the NCAA
Mark Emmert, president of the NCAA, spoke out against the anti-transgender bills across the country that are aimed at banning transgender youth from participating in sports. In a letter sent to HRC President Alphonso David, Emmert said that such legislation is “harmful to transgender student-athletes” and “conflicting with NCAA’s core values.” As the “March Madness” season of NCAA basketball championships wraps up, he also reiterated the NCAA’s commitment to hosting championship games in locations “free of discrimination,” writing, “The NCAA Board of Governors policy requires championship host sites to demonstrate how they will provide an environment that is safe, healthy, and free of discrimination. The board policy also requires that safeguards are in place to ensure the dignity of everyone involved in the event.”
Emmert also said the NCAA was aware of President Biden’s executive order “that strengthens the enforcement power of Title IX as it relates to transgender students on campuses. This federal guidance will be another important mechanism that states consider when formulating new legislation. All NCAA schools also must follow state and federal laws, including Title IX.”
Despite these positive happenings, anti-trans legislation remains a threat in the many states with pending anti-trans bills (including some states one usually thinks of as pro-LGBTQ, such as Connecticut and New Hampshire). Check to see if your state is among them, and contact your legislators to explain why they should not support these bills. Looking for explanations of why trans children and youth need access to gender-affirming care? The American Academy of Pediatrics and American Academy of Child and Adolescent Psychiatry (among other professional medical organizations) have statements you can wield. Want arguments for why trans athletes should be allowed to play sports? Try this series at OutSports; this report from the Center for American Progress; or my own two cents as a cisgender athlete who welcomes trans participation.