Yesterday, 11 states sued the U.S. Government in a Texas federal court over recent guidance documents its agencies issued defining “sex” in various civil rights laws to include “gender identity.” The suit is the latest in a widening legal battle over transgender rights — specifically the right of transgender people to use restrooms that accord with their gender identities.
The lawsuit challenges two recent documents from federal agencies. On May 3, 2016, the EEOC released a fact sheet on bathroom access for transgender employees, which states that discrimination based on transgender status is sex discrimination under Title VII. On May 9, 2016 the U.S. Department of Justice (DOJ) sued North Carolina over a recently-passed law that required public employees and public school students to use bathrooms that correlate with the sex listed on their birth certificates, and an executive order that required cabinet agencies to use the same definition of “sex” in segregating their bathrooms. On May 13, 2016 the DOJ and U.S. Department of Education (DOE) issued a “Dear Colleague Letter” stating that “[t]he Departments treat a student’s gender identity as the student’s sex for purposes of Title IX and its implementing regulations. This means that a school must not treat a transgender student differently from the way it treats other students of the same gender identity.” The lawsuit argues that these interpretations of Title VII and Title IX constitute a radical change in the law, and that the executive branch, through these two departments, cannot change the law in this way.