So, this is couple days late because I spent most of the day researching for this post. I wanted this to be a factual article, as well as an opinion piece. But today’s Trans* Tuesday post is about a historic Federal Court ruling on the definitions outlined within Title IX on the Civil Rights Act of 1964 and how it impacts existing legislature within the 4th Circuit, including HB2. Let’s dive right in.
Today (Tues. April 19th, 2016), the Federal Court of the 4th District of the United States ruled in favor of a 16 year-old transgender boy suing his school board’s decision to bar him from using the men’s restroom. There’s a lot to talk about here, but first, we need to start with what Title IX is.
Title IX of the United States Civil Rights Act of 1964 states
“[n]o person . . . shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance,”
and continues to detail some of these benefits, including:
- Provision of locker rooms, practice and competitive facilities;
- Provision of medical and training facilities and services;
- Provision of housing and dining facilities and services;
Title IX also continues, saying
“separate toilet, locker room, and shower facilities on the basis of sex, but such facilities provided for students of one sex shall be comparable to such facilities provided for students of the other sex.”
This is further bolstered by a Federal Department of Education opinion letter dated January 7, 2015, the Department’s Office for Civil Rights wrote: “When a school elects to separate or treat students differently on the basis of sex . . . a school generally must treat transgender students consistent with their gender identity.”5 J.A. 55.
Boom. Great news, right? Case dismissed.
Well, no. The school board for Gloucester County Public Schools (GCPS) suggests that “a restroom may not be educational in nature and thus is not an educational program covered by Title IX.” Excuse me, but what?
That argument is shaky at best. Just because classes aren’t held in bathrooms, it’s not covered under Title IX? Thankfully, the federal court has a different interpretation.
Except as provided in this subpart, in providing any aid, benefit, or service to a student, a recipient shall not, on the basis of sex:
(1) Treat one person differently from another in determining whether such person satisfies any requirement or condition for the provision of such aid, benefit, or service;
(2) Provide different aid, benefits, or services or provide aid, benefits, or services in a different manner;
(3) Deny any person any such aid, benefit, or service; . . .
(7) Otherwise limit any person in the enjoyment of any right, privilege, advantage, or opportunity.
34 C.F.R. § 106.31(b). We have little difficulty concluding that access to a restroom at a school, under this regulation, can be considered either an “aid, benefit, or service” or a “right, privilege, advantage, or opportunity,” which, when offered by a recipient institution, falls within the meaning of “educational program” as used in Title IX and defined by the Department’s implementing regulations.
This is a historic ruling. This ruling paves the way for a SCOTUS ruling protecting against trans* discrimination under Title IX, and potentially the greater Civil Rights Act in general. But more importantly: The 4th Circuit includes North Carolina. A state that has been infamously plastered across millions of televisions and periodicals as of late, due to an insidious bill passed in their state: House Bill 2.
HB2 is being called an anti-LGBTQ bill for many reasons, but chief among them is the law changing the definition of sex in the state’s anti-discrimination laws to biological-sex, and the provisions it makes for barring any protections from anti-discrimination legislature to gays and lesbians. In short, this bill makes it illegal for transgender people to use the restroom of the gender they identify with, and it allows businesses and individuals free reign to deny the LGBTQ community services and benefits.
This is hugely controversial. And rightly so; this bill is pure hate wrapped in a ‘legalese’ tortilla, like some evil burrito. As such, the outcry has been deafening. Protests have been almost non-stop. Corporate activism is on the rise with such companies as Red Hat, Dow Chemical, Biogen, Wells Fargo, American Airlines, Lowe’s, PayPal, Marriott International, Apple, Google, Facebook, Twitter, IBM, Yelp, and Salesforce. On March 29, 2016, an open letter signed by 80 corporate CEOs against House Bill 2 was sent to Governor McCrory.
And the commercial fallout doesn’t stop there. Multiple film production companies, such as 21st Century Fox and Lionsgate have refused to produce in the state for good. The NBA and other sports agencies are considering canceling sports events. Bruce Springsteen canceled a concert just over a week ago.
Even the Federal Government isn’t happy with this bill. The Obama administration is currently debating whether this bill makes the state ineligible for any kind of federal funded assistance.
State and local governments across the country have spoken out against the bill, banning travel to North Carolina, including Connecticut, Minnesota, New York, Vermont, and Washington; the District of Columbia; the counties of Cuyahoga, Ohio, Multnomah, Oregon, and Summit, Ohio; and the cities of Atlanta, Boston, Chicago, Cincinnati, Dayton, Honolulu, Los Angeles, Miami Beach, New York City, Oakland, California, Philadelphia, Portland, Oregon, Providence, Royal Oak, Michigan, Salt Lake City, San Francisco, Santa Fe, New Mexico, Seattle, Tampa, West Palm Beach, Florida, and Wilton Manors, Florida.
Even the North Carolina cities of Carrboro, Greensboro, Durham, Chapel Hill, Asheville and Raleigh are in open opposition to the bill.
But now, opponents to HB2 have a real chance at overturning it, thanks to the 4th Circuit decision. But don’t be mistaken. This is not the end of the fight. It’s simply a federal court ruling on the meaning of Title IX, which applies to education. However, federal cases and lead to supreme court cases, as with the fight for marriage equality, culminating in the SCOTUS ruling last summer.
And something else to keep in mind, the 4th Circuit didn’t completely overturn the district court’s decision in the Gloucester County Public Schools case. Instead, it remanded it back to the District Court, stating that the original ruling was without basis and unconstitutional. Which is still a big deal! But there is a long way to go.
This fight is not over, but rather, it is just beginning. Let’s go get ’em.