Transgender people are slowly but surely becoming a protected class in America as judges across the country rule that anti-discrimination laws in education and employment also apply to them.
In fact, a new legal precedent is being set to permit transgender people to use the bathroom of their choosing, and congress has nothing to do with it. This leads LGBT rights advocates to now believe that marriage equality and transgender rights will soon be a normal, acceptable part of society.
“There’s a very clear trend among federal courts that our nation’s laws that prohibit sex discrimination also prohibit discrimination on the basis of gender identity and sexual orientation,” said Sarah Warbelow, legal director of the Human Rights Campaign. “In employment and education, blocking people from accessing a bathroom is a clear violation of the law.”
Transgender students claiming protection under Title IX anti-discrimination laws in education are now being heard. For instance, 6th Circuit judges in December ruled that “sex stereotyping based on a person’s gender non-conforming behavior is impermissible discrimination.”
“I don’t know if the Department of Justice intends to issue new guidance, but it’s impossible at this point to issue guidance that is different than what the Obama administration issued without disregarding the strong consensus among the federal courts,” said Shannon Minter, legal director at the National Center for Lesbian Rights.
However, Joe Grabowski, a spokesman for the National Organization for Marriage, said it should be up to the courts to decide what’s prohibited under Title IX. “Unfortunately, LGBT advocates in the past with the same-sex marriage issue and now with the trans rights issue seek to side-step the normal legislative and political process and have the court mandate things by fiat, which we think is an overstep of judicial authority,” said Grabowski, adding, “If we redefine gender, obviously that makes that a much harder task. If you redefine what men and women are, then the definition of marriage as it’s known traditionally is called into question.”
Grabowski is concerned about the impact on religious institutions; namely faith-based universities that segregate students in dorms based on sex.
“The reality is that transgender students are not a threat to other students, and student privacy can be respected without discriminating against transgender students,” noted attorney Eric Harrington, who works in the National Education Association’s office of general counsel.
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