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The legal struggle for transgender rights

A change in culture and support from national leaders has pushed the issue of transgender equality to the front pages, but states are struggling with how to approach the issue.

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Josh Langdon

For example, in some states, transgender persons are not permitted to change their gender marker on their birth certificate, even though they can change their driver’s license and United States passport. Other states, like North Carolina, have taken specific steps to exclude transgender people from anti-discrimination protections.

Gender identity is complex and often misunderstood. By definition, gender identity is one’s innermost concept of self as male, female or a blend of both – which can be the same or different from the sex assigned at birth. Every person has a gender to which they identify. Transgender is an umbrella term that encompasses people whose gender identity does not match what society believes is appropriate based upon the sex designated on their birth certificates.

One’s gender identity also does not imply any specific sexual orientation, so transgender people may identify as straight, gay, lesbian or bisexual. Gender dysphoria, which is not diagnosed in every transgender individual, is clinically significant distress caused when a person’s assigned birth gender is not the same as the one with which they identify.

Bathroom rights of transgender people have dominated news headlines recently. In April 2016, the United States Fourth Circuit Court of Appeals sided with a transgender female-to-male high school student named Gavin after he sued his Virginia school board over a policy that forced transgender students to use separate, gender-neutral restrooms.

The Fourth Circuit held in G.G. v. Gloucester School Board that Title IX of the of the Education Amendments of 1972 protects the rights of Gavin and other transgender students to use sex-specific bathrooms that are consistent with their gender identity. The Fourth Circuit did not rule on Gavin’s equal protection claim, but rather gave deference to administrative interpretations and regulations of Title IX. The Court declared that Congress has the power to amend Title IX should it want to specifically exclude transgender students from Title IX protections.

In May 2016, President Obama directed schools nationwide to allow transgender students to use the bathroom that corresponds with their gender identity rather than the sex designated on their birth certificate. The order sparked harsh criticism from opponents, who lambasted the action as federal overreach into school systems that should instead be led by local leaders.

U.S. Attorney General Loretta Lynch also filed a lawsuit against North Carolina after it became the first state to explicitly ban transgender people from using the bathrooms of their choice. The North Carolina law also invalidated local anti-discrimination laws passed by cities such as Charlotte. Obama and Lynch both premised their decisions on gender identity being a protected classification synonymous with “sex” in federal statutes, which has been a clear trend in a series of administrative interpretations.

In May 2016, the U.S. Department of Health and Human Services announced regulations interpreting the Affordable Care Act’s nondiscrimination clause to include gender identity in sex discrimination. While the full impact of the HHS regulations is unclear, most health providers and insurance companies will no longer be permitted to discriminate against transgender people by refusing access to health care needed to transition.

Transgender employees are also garnering protections from sex-based discrimination under Title VII of the Civil Rights Act of 1964.

Quite simply – the trend is that Title VII is not exclusive to biological sex and precludes discrimination that occurs as a result of cultural and social aspects associated with masculinity and femininity. The law forbids discrimination when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits and any other term or condition of employment.

Employers should scrutinize their policies and ensure that they are in compliance with the law. A prospective or current employee’s gender identity should not be a basis for any adverse employment-related action. Schools and school boards should also pay close attention to the decisions surrounding Title IX. While the future is unclear, transgender individuals are presumably protected from “sex-based” discrimination until statutes are changed or constitutional claims are ruled upon.

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