Yo, Texas: Protecting Transgender Rights Is Not Dangerous, but Discrimination Is

Thirteen states have filed an amicus brief against the Texas challenge to bathroom access. Thirteen states have filed an amicus brief against the Texas challenge to bathroom access. (Photo: hermitsmoores / Flickr)

A dozen states and the District of Columbia have a message for Texas: The sky does not fall when policy makers seek protections for transgender people.

In an amicus brief filed with a federal court in Texas on Wednesday, the attorneys general of 12 states and the District of Columbia, led by Attorney General Bob Ferguson of Washington, came out swinging against a Texas-led lawsuit challenging the Obama administration’s May 2016 guidance directing public schools to protect the civil rights of transgender students, including their right to use the bathrooms and locker rooms that correspond to their gender.

Texas and 10 other states filed a lawsuit against the guidance soon after, claiming that school districts that choose not to comply with the guidance could lose federal funding under Title IX, the federal statute that protects against gender discrimination in public schools. The Education and Justice Departments have released guidance saying that Title IX protects against discrimination based on both biological sex and gender identity, a move that opponents say circumvents Congress.

The states, which include Oklahoma, Louisiana, Wisconsin and several others with socially conservative administrations, have asked a federal court in Wichita Falls, Texas to issue an injunction against the Obama administration that would block the federal government from issuing guidelines that prohibit employers and school districts from discriminating against transgender people, particularly when it comes to using the bathroom.

Washington and the other states filing the amicus brief in opposition to the request for an injunction have all instituted explicit protections for transgender people or modified anti-discrimination laws to include “gender identity.” They argue that their experience shows that Texas and its allies have no grounds to continue policies that allow discrimination against people on the basis of gender identity.

“We are clear that our experience [has been] a positive one, and I think the court can benefit from our perspective,” Ferguson told reporters on Wednesday. In a statement, he called the Texas lawsuit “just another example of the discrimination that transgender individuals experience” and denounced it as an attempt to “hide behind unfounded safety concerns.”

The plaintiffs argue that an injunction is needed because school districts will either lose Title IX funding or be forced to spend a considerable amount of money remodeling bathrooms to accommodate transgender students. Moreover, the plaintiffs, which include rural school districts in Texas and Arizona, also reference concerns over “safety” and “sex crimes” in school bathrooms, perpetuating hateful myths about transgender people — particularly transgender women — that have been debunked many times over.

However, the states opposed to the injunction point out that schools are not actually required to build “single user” restrooms to accommodate transgender students and quell the concerns of parents. The experience of school districts in more progressive states shows such measures are unnecessary. Public schools in Los Angeles, for example, report that they have had “no issues, problems or lawsuits” since instituting a 2004 policy that allows transgender students to use the bathroom that corresponds to their gender.

Nearly 20 states offer protections for transgender people in one way or another, and none of the states have experienced an increase in sexual violence since instituting the policies — some as far back as 25 years ago, according to the National Task Force to End Sexual and Domestic Violence Against Women, an organization that represents shelters and crisis centers in 43 states.

“We’ve protected gay and transgender people from discrimination in Washington for 10 years, with no increase in public safety incidents as a result,” said former Snohomish County Sherriff John Lovick, who is quoted in the amicus brief opposing the injunction request.

Ferguson and his allies argue that Texas does not face “irreparable injury” if its schools comply with the federal guidance, rather it’s the transgender individuals — who already face high rates of violence — who are likely to be harmed by continued discrimination in schools, which causes “stigma, isolation and exclusion.”

The plaintiffs have no real data to back up their claims, which are more likely based in “negative attitudes, misunderstandings or misplaced fear about transgender people,” says Ferguson.

The federal court in Wichita Falls has a history of siding with Texas in its challenges against federal policies and some observers expect that the case will eventually end up in the US Supreme Court.

The states that joined Washington in filing the brief supporting transgender rights are California, Connecticut, Delaware, Illinois, Maryland, Massachusetts, New Hampshire, New Mexico, New York, Oregon, Vermont and the District of Columbia.

Plaintiffs supporting Texas’ case are Alabama, Arizona, Wisconsin, West Virginia, Tennessee, Maine, Oklahoma, Louisiana, Utah and Georgia.

Arkansas, Kansas, Michigan, Montana, Nebraska, North Dakota, Ohio, South Carolina, South Dakota and Wyoming filed a similar lawsuit challenging the Obama administration’s transgender guidance earlier this month.