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The Status of Trans Rights in 2018

March 1, 2018 Diana Ali NASPA

For the last year the rights of trans individuals have been negatively affected by actions at both the state and federal levels. In February 2017 the Departments of Education (ED) and Justice (DOJ) put out a Dear Colleague Letter which rescinded Obama-era guidance extending sex discrimination protections under Title IX to trans students. In response, legal and community advocacy groups along with institutions of higher learning across the country released statements condemning the decision and even took to the streets in protest. Despite these protests, the February rescission, which offered no supplemental guidance in its place, resulted in a political domino effect. Citing the change in guidance, the Supreme Court decision remanded G.G. vs Gloucester County School Board, which could have set a national precedent to protect trans rights to bathroom and changing facility access, back to the lower court for decision. At the same time, the Office for Civil Rights (OCR) halted several Title IX investigations regarding trans students.

Rollbacks to trans rights continued in June 2017 when an internal OCR staff memo instructed investigators to follow Title IX protocol, which, in accordance with the February rescission no longer extended to trans students’ rights to occupy the restroom or changing facility of appropriate for their gender identity.  In February 2018, several news outlets reported that ED was officially taking a stance regarding bathroom access. These reports were confirmed by ED spokeswoman Liz Hill, who told NPR that while harassment of transgender students would fall under Title IX, “In the case of bathrooms, however, long-standing regulations provide that separating facilities on the basis of sex is not a form of discrimination prohibited by Title IX."

These rollbacks seemed to correlate with an onslaught of discriminatory “bathroom bills” which popped up at the state-level during the 2017 legislative cycle. Legislation followed the model of North Carolina’s notorious HB 2, later replaced with a slightly lighter, though still discriminatory policy, limiting multi-occupancy bathroom access based on sex as assigned at birth. Last year NASPA’s Policy and Advocacy Team tracked various iterations of bathroom bills across 16 states, none of which moved forward to pass, despite Texas bringing two measures TX HB 46 and TX HB 50 into special session.

While this paints a dire picture for the future of trans rights, hope is not lost. Local and judicial proceedings continue to offer a pathway of inclusivity for trans individuals. In May 2017, the 7th Circuit Court interpreted Title IX sex discrimination and the 14th Amendment to extend to trans individuals in Whitaker vs. Kenosha Unified School District. In November 2017, Rachel Tudor was awarded $1.1 million after having been found to have been discriminated against her place of work, Southeastern Oklahoma State University. A number of court rulings in the Tudor case found that Title VII anti-discrimination laws in employment extend to sexual orientation and gender identity.

In 2018, as states legislatures reconvene, the Policy and Advocacy Team at NASPA continues to track an increasing number of bills designed to increase protections for trans individuals as well as those that would further restrict or remove trans rights. This post will provide a summary of the legislation, but those who wish to view a summary of each of the 19 bills across 10 states which pertain to the rights of trans individuals can access a report here.

While the majority of the state bills acted on in 2018 aim to limit the rights of trans individuals, seven have a gender inclusivity or anti-discrimination focus that extends to trans individuals. Examples of protective policies include New Jersey Assembly Bill 1727 (NJ A 1727), which would create a Transgender Equality Taskforce, and Hawaii House Bill 2139 (HI HB 2139), Hawaii Senate Bill 2353 (HI SB 2353), or Idaho House Bill 408 (I H 408), all of which prohibit discrimination on the basis of sex, including gender expression. The Hawaii bills (HI HB 2139 & HI SB 2353) have both been recommended to pass out of committee upon a third reading.

Several measures, such as Kentucky (KY HB 326) and Tennessee (TN HB 888), are traditional “bathroom bills” that limit bathroom and facility access based on either sex assigned at birth or listed on a birth certificate. Based on last year’s legislative cycle outcomes, these restrictive bills are unlikely to pass and will most likely be received unfavorably by the public should they move forward in committee. However, some of the discriminatory measures under consideration are unlike previous bills, and it is less certain how these measures will fare. Tennessee House Bill 2620 (TN HB 2620) would give power to the State Attorney General to represent local education authorities on cases pertaining to bathroom access for trans individuals, and essentially, give the state more power in determining the outcome of those rulings. Oklahoma Senate Bill 1250 (OK SB 1250) connects the right to limit bathroom access with freedom of religion, relating to state-level trends in religious freedom restoration policies.

NASPA remains committed to supporting trans rights, as noted in our statements in support of trans students concerning the February 2017 and February 2018 ED rollbacks. To stay abreast of how state-level trans rights legislation proceeds for the remainder of the 2018 legislative session, be sure to check out our Weekly Policy Update posted to the RPI blog on Monday afternoons.