Bathroom Lawsuit Could Send Transgender Rights To U.S. Supreme Court

The country's high court has never ruled on a main question of the lawsuit.

A lawsuit brought by Texas and other states against the Obama administration's policy on bathroom access may move the United States closer to a resolution on transgender rights by putting the issue on a trajectory for the Supreme Court.

Conservative officials from 11 states sued the federal government on Wednesday to overturn a directive that transgender students be allowed to use the bathroom matching their gender identity instead of being forced to use one corresponding to gender assigned at birth. The governor of a 12th state, Mississippi, said he planned to join the lawsuit.

The country's high court has never ruled on a main question of the lawsuit: Do federal legal protections against sex discrimination apply to transgender people?

The plaintiffs picked a path that could get them two quick wins in lower courts. The lawsuit is expected to be heard first by an appointee of Republican President George W. Bush and if there is an appeal by a conservative federal appeals court covering Texas.

If that appeals court ruled against the Obama administration, the Supreme Court may feel compelled to take up the matter because of a likely conflict with a ruling last month from a federal appeals court in Virginia. That ruling revived a transgender teen's lawsuit against his school district.

The Supreme Court is more likely to agree to hear a case when there is a split among different federal appeals courts, and such a conflict does not yet exist on transgender rights.

The plaintiffs have accused the administration of President Barack Obama of overreaching its authority and said the U.S. Congress, or individual states, should set policy.

At least two provisions of federal law ban discrimination on the basis of sex: Title VII of the Civil Rights Act of 1964, which covers employment, and Title IX of the Education Amendments of 1972.

When lawmakers passed the education amendments, they did not consider that the law could one day be applied to gender identity, said Jeremy Tedesco, senior counsel at the Alliance Defending Freedom, a conservative Christian legal group.

"The (administration's) lawless interpretation ignores the will of Congress in enacting Title IX," Tedesco said. "It's a clear case of federal overreach."

The Obama administration has argued that the education amendments encompass discrimination based on gender identity, including transgender status. It said in a letter to school districts this month that their access to federal money depended on their compliance.

The states that sued have two paths to victory, Tedesco said: a ruling that the Obama administration did not follow proper procedure for making new regulations, which would leave the larger issue unsettled, or that its interpretation of Title IX is inconsistent with the law.

Without clear guidance from the courts, the question of transgender rights would remain open to interpretation by federal agencies, meaning a future president could take the opposite view of Obama.

The Republican-controlled Congress has the power to end the dispute immediately, either in favor of transgender rights or against them, but it has shown few signs of acting, especially with a Democrat, Obama, in the White House.

A series of decisions suggests courts are coming around to a more expansive definition of sex discrimination, said Jennifer Levi, director of the Transgender Rights Project at GLBTQ Legal Advocates & Defenders.

Federal agencies clearly have the authority to interpret civil rights law when its application is unclear, she said.

"To characterize (the administration's position) as extraordinary or overreaching shows a complete misunderstanding of what these agencies do," Levi said.

The states countered in their lawsuit that the federal agencies went beyond mere interpretation of civil rights law and in effect created new regulations that should have gone through a notice-and-comment procedure.

A court could also find that the states' lawsuit was premature because the Obama administration has not yet moved to cut off funding to any state or school district, said Arthur Leonard, a professor at New York Law School and an expert on LGBT law.

Georgina Beyer
Vijay Mathur / Reuters
New Zealand's Georgina Beyer became the world's first openly transgender MP when she entered Parliament in 1999. At the time, the media heavily emphasized Beyer's past as a sex worker, but she said the scrutiny "did not make enough of an impact to destroy my credibility as a human being, as a person, as a politician. Which is remarkable.''
Althea Garrison
Boston Globe via Getty Images
In 1992, Garrison was elected as a Republican to the Massachusetts House of Representatives. Just days after that victory, however, The Boston Herald published an article outing Garrison, who had been living as her authentic self as a woman at the time of her campaign, as transgender. In 1994, she lost her re-election bid.
Aya Kamikawa
Reuters Photographer / Reuters
Kamikawa, who is a Tokyo municipal official, became Japan's first openly transgender person in a public office in 2003. Still, in 2006, she said, “My mission is not over yet. There are still many who are suffering as I used to.”
Anna Grodzka
Grodzka was elected in 2011 as a member of the Palikot's Movement party in Poland, making her the world's only openly transgender MP and the second ever in history. "The real issue is a lot more complicated," she has said of her country's stance on LGBT rights, "And Polish people are a lot more divided on the issue."
Shabnam Mausi
STR via Getty Images
Shabnam Mausi (left)is the first openly transgender person in India to be elected to public office, serving as part of the Madhya Pradesh State Legislative Assembly from 1998 to 2003. A film about her life was released in 2005.
Camille Cabral
Francois Lenoir / Reuters
In 2001, Cabral was elected to the council of the 17th arrondissement of Paris by the French Green Party. The dermatologist made history as the first openly transgender woman in France to be elected into office and bravely defended the rights of sex workers. She served until 2008.
Nikki Sinclaire
AFP via Getty Images
Nikki Sinclaire became the United Kingdom’s first openly transgender parliamentarian in 2013 when she came out in her autobiography. In the book, Sinclaire revealed she underwent gender confirmation surgery in 1995.

Sinclaire served from 2009 to 2014, when she was not re-elected.
Luisa Revilla Urcia
via YouTube
In 2014, Luisa Revilla Urcia became the first openly transgender person to be elected to public office in Peru when she won a seat on a local council in La Esperanza in the province of Trujillo.

“I am going to promote equality and I will say no to discrimination,” she told The Washington Blade. “We want everyone to have equal access, to succeed and to achieve their goals. When there is no discrimination, there is pacification. Infrastructure and modernity is important, but promoting values and showing concern for the people matters even more.”
Michelle Suárez
via YouTube
In 2014 Michelle Suárez became the first openly transgender official elected to the Uruguayan legislature, as well as the first openly trans person elected to a national assembly in the Americas.

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