Here’s Why Anti-Trans Laws Are Not Legal

Photo by Pawel Czerwinski on Unsplash

Federal protections override state laws that attempt to take away those protections. This means that the anti-trans laws that some states have passed into law are not legal — and can be overturned by the federal government.

The federal government gets its power to overturn state laws from the Supremacy Clause in the United States Constitution. Merriam-Webster describes the Supremacy Clause this way: a clause in Article VI of the U.S. Constitution declares the constitution, laws, and treaties of the federal government to be supreme law of the land to which judges in every state are bound regardless of state law to the contrary.

The Supremacy Clause is closely related to the idea of preemption. The Free Legal Dictionary says that preemption is a doctrine based on the Supremacy Clause of the U.S. Constitution that holds that certain matters are of such a national, as opposed to local, character that federal laws preempt or take precedence over state laws. As such, a state may not pass a law inconsistent with the federal law.

Reference.com provides an example of preemption:

…For instance, during desegregation in the South, many states tried to pass laws to halt its progress. The Supreme Court ruled that such laws were unconstitutional in Cooper vs. Aaron. This court case basically established the precedent that any such law a state tries to pass to nullify a federal law is not constitutional.

In October of 2019, the Supreme Court of the United States made a decision on a case called Bostock v. Clayton County, Georgia. The opinion of the court was written by Justice Neil Gorsuch (who was nominated by former President Trump.)

In short, the case was brought by two men who were gay, and a woman who was transgender. Each had been fired by their employer after the employer discovered that the employee was gay or transgender. This is discrimination. Justice Gorsuch wrote: An employer who fires an individual for merely being gay or transgender violates Title VII.

Title VII makes it “unlawful… for an employer to fail or refuse to hire or discharge any individual, or otherwise to discriminate against any individual … because of such individual’s race, color, religion, sex, or national origin.”

Sometimes small gestures can have unexpected conse­quences. Major initiatives practically guarantee them. In our time, few pieces of federal legislation rank in signifi­cance with the Civil Rights Act of 1964. There, in Title VII, Congress outlawed discrimination in the workplace on the basis of race, color, religion, sex, or national origin. Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. An employer who fires an individual for being ho­mosexual or transgender fires that person for traits or ac­tions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.

Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result. Likely, they weren’t thinking about many of the Act’s con­sequences that have become apparent over the years, in­cluding its prohibition against discrimination on the basis of motherhood or its ban on the sexual harassment of male employees. But the limits of the drafters’ imagination sup­ply no reason to ignore the law’s demands. When the ex­press terms of a statute give us one answer and extratex­tual considerations suggest another, it’s no contest. Only the written word is the law, and all persons are entitled to its benefit…

Here’s what the Biden’s Executive Order has done to protect people who are transgender:

On January 20, 2021, President Biden issued an executive order titled “ Executive Order on Preventing and Combating Discrimination on the Basis of Gender or Sexual Orientation.” The purpose of the executive order is to ensure that people who are LGBTQA+ do not face discrimination based on who they are.

From the executive order:

Every person should be treated with respect and dignity and should be able to live without fear, no matter who they are or whom they love. Children should be able to learn without worrying about whether they will be denied access to the restroom, the locker room, or school sports. Adults should be able to earn a living and pursue a vocation knowing that they will not be fired, demoted, or mistreated because of whom they go home to or because how they dress does not confirm to sex-based stereotypes. People should be able to access healthcare and secure a roof over their heads without being subjected to sex discrimination. All persons would receive equal treatment under the law, no matter their gender identity or sexual orientation.

The executive order mentions the Bostock v. Clayton County, Georgia case, and its outcome.

The executive order also mentions another case, Grimm v. Glocester County School Board. The school board refused to allow Gavin Grimm, a transgender male, to use the boys restrooms at his high school. The United States Court of Appeals for the Fourth Circuit heard the case, in which Circuit Judge Floyd stated: “At the heart of this appeal is whether equal protection and Title IX can protect transgender students from school bathroom policies that prohibit them from affirming their gender. We join a growing consensus of courts in holding that the answer is resoundingly yes…”

Part of the executive order requires the head of each agency to “as soon as practicable and appropriate and consistent with applicable law, including the Administrative Procedures Act (5 U.S.C. 551 et. seq.), consider whether to revise, suspend, or rescind such agency actions, or promulgate new agency actions, as necessary to fully implement statutes that prohibit sex discrimination and the policy set forth in section 1 of this order.”

On January 22, 2021, The Guardian posted an article titled: “Joe Biden’s gender discrimination order offers hope for young trans athletes”. It was written by Bryan Armen Graham (and agencies). From the article:

Joe Biden’s first day in office delivered an incremental victory for transgender athletes seeking to participate as their identified gender in high school and college sports.

Among the flurry of executive orders signed on Wednesday, Biden called on all federal agencies to enforce a US supreme court decision from last year that expanded the definition of sex discrimination to include discrimination based on sexual orientation as well as gender identity — with language that explicitly referenced the arena of high school and college sports.

“Children should be able to learn without worrying about whether they will be denied access to the restroom, the locker room, or school sports,” the directive states, adding that the incoming administration is committed to “prevent and combat discrimination on the basis of gender identity or sexual orientation”…

…Crucially, it states that the Bostock decision should also apply to Title IX, the federal law that prohibits discrimination in federally funded schools, in keeping with Biden campaign promise that his Department of Education would investigate and address any violations of transgender students’ rights. States that fail to comply would risk legal action or the loss of federal funding…

Here is what Federal Agencies are Doing to Protect People who are LGBTQ+ from Discrimination:

On March 26, 2021, the U.S. Department of Justice (Civil Rights Division) posted a memorandum titled: “Application of Bostock v. Clayton County to Title IX of the Education Amendments of 1972”. Here are some key points from it:

…Executive Order 13988 sets out the Administration’s policy that ‘[a]ll persons should receive equal treatment under the law, no matter their gender identity or sexual orientation.” Citing the Supreme Court’s holding in Bostock that the prohibition on discrimination “because of… sex” under Title VII of the Civil Rights Act of 1964 U.S.C. § 2000e et. seq. (Title VII), covers discrimination on the bases of gender identity and sexual orientation, the Executive Order explains that Bostock’s reasoning applies with equal force to other laws that prohibit sex discrimination “so long as the laws do not contain sufficient indications to the contrary”. The Executive Order directs agencies to review other laws that prohibit sex discrimination, including Title IX, to determine whether they prohibit discrimination on the basis of gender identity and sexual orientation. We conclude that Title IX does…. …In the months following the Bostock decision, two appellate courts have reached the same conclusion, citing Bostock to support their holdings that Title IX protects transgender students from discrimination on the basis of gender identity. (Grimm v Gloucester Cnty. Sch. Bd….). Other circuits reached this conclusion before Bostock….

Let me point out here that the U.S. Department of Justice (Civil Rights Division) mentions Whitaker v. Kenosha Unified Sch. Dist. No 1 Bd. of Education, in which a transgender boy was likely to succeed on his claim that the school district violated Title IX by excluding him from the boys’ restroom. It also mentioned Dodds v. U.S. Dep’t of Educ., which involved a school district that sought to exclude a transgender girl from the girls’ restroom, was not likely to succeed on the claim because Title IX prohibits discrimination based on sex stereotyping and gender nonconformity.

…After considering the text of Title IX, Supreme Court caselaw, and developing jurisprudence in this area, the Division has determined that the best reading of Title IX’s prohibition on discrimination “on the basis of sex” is that it includes discrimination on the basis of gender identity and sexual orientation

An article on them, written by Nico Lang on April 5, 2021, provides some additional explanation. The article is titled: “Justice Department Affirms Title IX Protects LGBTQ+ Students From Discrimination”.

A new memo issued by the Department of Justice (DOJ) further laid out what the Biden administration has made clear in recent weeks: Anti-LGBTQ+ discrimination is illegal…

…LGBTQ+ advocacy groups say the memo is a major step toward ensuring equal access for all young people as the Equality Act languishes in the Senate. While the nationwide civil rights bill would mandate sweeping protections for queer and trans people in areas like education, health care, and public accommodations, it is unlikely to pass in 2021 following opposition from Republicans and Democratic moderates in a divided Senate…

On February 11, 2021, the U.S. Department of Housing and Urban Development (HUD) posted a press release titled: “ HUD To Enforce Fair Housing Act To Prohibit Discrimination On The Basis Of Sexual Orientation And Gender Identity “. Here are some key points from the press release:

…HUD’s Office of Fair Housing and Equal Opportunity (FEHO) issued a memorandum stating that HUD interprets the Fair Housing Act to bar discrimination on the basis of sexual orientation and gender identity and directing HUD offices and recipients of HUD funds to enforce the act accordingly. The memorandum begins implementation of the policy set forth in President Biden’s Executive Order 13988 on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation (Executive Order), which directed executive branch agencies to examine further steps that could be taken to combat such discrimination….

…The significance of this action is underscored by a number of housing discrimination studies which indicate that same-sex couples and transgender persons in communities across the country experience demonstrably less favorable treatment than their straight and cisgender counterparts when seeking rental housing. Despite this reality, the Department has been constrained in its efforts to address housing discrimination on the basis of sexual orientation and gender identity by legal uncertainty about whether most such discrimination was within HUD’s reach.

The memorandum relies on the Department’s legal conclusion that the Fair Housing Act’s sex discrimination provisions are comparable in text and purpose to those of Title VII of the Civil Rights Act, which bars sex discrimination in the workplace. In Bostock v Clayton County, the Supreme Court held that workplace prohibitions on sex discrimination include discrimination because of sexual orientation and gender identity. HUD has now determined that the Fair Housing Act’s prohibition on sex discrimination in housing likewise includes discrimination on the basis of sexual orientation and gender identity. Accordingly, and consistent with President Biden’s Executive Order, HUD will enforce the Fair Housing Act to prevent and combat such discrimination…

The memorandum directs the following:

HUD will accept and investigate all jurisdictional complaints of sex discrimination, including discrimination because of gender identity or sexual orientation, and enforce the Fair Housing Act where it finds such discrimination occurred.

HUD will conduct all activities involving this application, interpretation, and enforcement, of the Fair Housing Act’s prohibition on sex discrimination consistent with its conclusion that such discrimination includes discrimination because of sexual orientation or gender identity.

State and local jurisdictions funded by HUD’s Fair Housing Assistance Program (FHAP) that enforces the Fair Housing Act through their HUD-certified substantially equivalent laws will be required to administer those laws to prohibit discrimination because of gender identity and sexual orientation.

Organizations and agencies that receive grants through the Department’s Fair Housing Initiative Program (FHIP) must carry out their funded activities and also prevent and combat discrimination because of sexual orientation and gender identity.

On April 22, 2021, the U.S. Department of Housing and Urban Development (HUD) posted a press release titled: “ HUD Withdraws Proposed Rule, Reaffirms Its Commitment to Equal Access to Housing, Shelters, and Other Services Regardless of Gender Identity “. From the press release:

…U.S. Department of Housing and Urban Development (HUD) Secretary Marcia L. Fudge on Thursday announced that HUD is withdrawing the previous administration’s proposed rule that would have weakened the Equal Access Rule. The Equal Access Rule ensures that all individuals — regardless of sexual orientation or gender identity — have equal access to the Department’s Office of Community Planning and Development programs, shelters, other buildings and facilities, benefits, services, and accommodations…

…The previous administration refused to fully implement the Equal Access Rule and proposed a rule in 2020 that would have allowed shelter programs and operators to subject transgender individuals to inappropriate and intrusive inquiries, deny them accommodations, and subject them to greater harassment.

HUD has submitted its action withdrawing that rule to the Federal Register and is expected to publish it next week. This action reaffirms HUD’s mission and commitment to creating inclusive communities and quality housing for all. Excluding any eligible person from HUD’s Office of Community Planning and Development funded emergency shelters, temporary housing, buildings, housing, or programs because of a person’s gender identity is counter to HUD’s mission….

The Department of Housing and Urban Development provided some explanation of what the Trump Administration did — that has now been overturned:

…On July 24, 2020, the previous administration proposed a rule entitled: “Making Admission or Placement Determinations Based on Sex in Facilities Under Community Planning and Development Housing Programs”. This proposed rule, if finalized, would have significantly undermined the 2016 CPD Equal Access Rule.

The proposed 2020 Shelter Rule would have allowed HUD-sanctioned, federally funded discrimination against transgender people, who face disproportionately high rates of homelessness and extreme risk in unsheltered homelessness.

First, the rule would have allowed HUD CPD-funded shelters or other facilities to create policies excluding transgender and gender non-conforming people from being placed in single-sex facilities that aligned with those persons’ gender identities. This would have created insurmountable barriers to shelter access for transgender and gender non-conforming people who already face serious discrimination and difficulty in safely accessing shelters.

Second, the rule would have allowed CPD grant funding recipients, subrecipients, owners, operators, managers, and providers to overrule the gender identity proffered by a person seeking shelter and make their determination about that person’s gender. It allowed CPD funding recipients to focus solely on a person’s sex assigned at birth and then assess that based on physical factors such as height and the presence of facial hair. This intrusive and humiliating inquiry would be inflicted on the especially vulnerable people experiencing homelessness, many of whom have experienced sexual assault or other trauma…

On May 10, 2021, the U.S. Department of Health and Human Services (HHS) posted a press release titled: “ HHS Announces Prohibition on Sex Discrimination Includes Discrimination on the Basis of Sexual Orientation and Gender Identity. “ From the press release:

Today, the Department of Health and Human Services announced that the Office for Civil Rights will interpret and enforce Section 1557 and Title IX’s prohibitions on discrimination based on sex to include: (1) discrimination on the basis of sexual orientation; and (2) discrimination on the basis of gender identity. Section 1557 prohibits discrimination on the basis of race, color, national origin, sex, age, or disability in covered programs or activities. The update was made in light of the U.S. Supreme Court’s decision in Bostock v. Clayton County and subsequent court decisions.

“The Supreme Court has made clear that people have a right not to be discriminated against on the basis of sex and receive equal treatment under the law, no matter their gender identity or sexual orientation. That’s why today HHS announced it will act on related reports of discrimination,” said HHS Secretary Xavier Becerra. “Fear of discrimination can lead individuals to forgo care, which can have serious negative health consequences. It is the position of the Department of Health and Human Services that everyone — including LGBTQ people — should be able to access health care, free from discrimination or interference, period.”

Discrimination in health care impacts health outcomes. Research shows that one quarter of LGBTQ people who faced discrimination postponed or avoided receiving needed medical care for fear of further discrimination.

“The mission of our Department is to enhance the health and well-being of all Americans, no matter their gender identity or sexual orientation. All people need access to healthcare services to fix a broken bone, protect their heart health, and screen for cancer risk,” said Dr. Rachel Levine, Assistant Secretary for Health. “No one should be discriminated against when seeking medical services because of who they are.”

The Office for Civil Rights (OCR) at the U.S. Department of Health and Human Services (the Department) is responsible for enforcing Section 1557 of the Affordable Care Act (Section 1557) and regulations issued under Section 1557, protecting the civil rights of individuals who access or seek to access covered health programs or activities. Covered entities are prohibited from discriminating against consumers on the basis of sexual orientation or gender identity.

“OCR’s mission is to protect people from all forms of discrimination,” said Robinsue Frohboese, Acting OCR Director. “OCR will follow Supreme Court precedent and federal law, and ensure that the law’s protections extend to those individuals who are discriminated against based on sexual orientation and gender identity.”

On June 15, 2020, the U.S. Supreme Court held that Title VII of the Civil Rights Act of 1964 (Title VII)’s prohibition on employment discrimination based on sex encompasses discrimination based on sexual orientation and gender identity. Bostock v. Clayton County, GA, 140 S. Ct. 1731 (2020). The Bostock majority concluded that the plain meaning of “because of sex” in Title VII necessarily included discrimination because of sexual orientation and gender identity. Id. at 1753–54. Consistent with the Supreme Court’s decision in Bostock and Title IX, beginning today OCR will interpret Section 1557’s prohibition on discrimination on the basis of sex to include: (1) discrimination on the basis of sexual orientation; and (2) discrimination on the basis of gender identity. This interpretation will guide OCR in processing complaints and conducting investigations, but does not itself determine the outcome in any particular case or set of facts…

Here is some background on what the Trump Administration tried to do when it attempted to take away health protections from transgender people:

On June 12, 2020, NBC News posted an article titled: “Trump administration issues rule to curtail health protections for transgender people”. It was written by Dennis Romero. From the article:

The Trump administration on Friday finalized its rollback of protections against gender identity discrimination in health care regulated by the Affordable Care Act.

The U.S. Department of Health and Human Services said in a statement it would recognize “sex discrimination according to the plain meaning of the word ‘sex’ as male or female as determined by biology.”

The move means insurance policies and health care regulated under the Obama-era Affordable Care Act can deny services to transgender people. HHS said it is reverting to a time when the government “declined to recognize sexual orientation as a protected category under the ACA.”…

…Health and Human Service argues the rule will save taxpayers “$2.9 billion in undue and ineffective regulatory burdens over five years,” according to its statement…

…The National LGBTQ Task Force said more than 134,000 Americans have opposed the changes on the record during the mandated public comment period…

On August 17, 2020, NBC News posted an article titled: “Trump rule on transgender health blocked at the 11th hour”. From the article:

A federal judge blocked the Trump administration on Monday from enforcing a new regulation that would roll back health care protections for transgender people.

Finalized days after the Supreme Court barred sex discrimination against LGBT individuals on the job, the regulation from the federal Department of Health and Human Services was to have taken effect on Tuesday.

Monday’s preliminary injunction from U.S. District Court Judge Frederic Block in Brooklyn bars the administration from enforcing the regulation until the case can be heard and decided. Block indicated he thought the Trump administration’s so-called transgender rule is invalid in light of the Supreme Court ruling in June on a case involving similar issues in the context of job discrimination…

On May 10, 2021, ABC News posted an article titled: “US restores transgender health protections denied by Trump”. It was written by Ricardo Alonso-Zaldivar. From the article:

The federal government will protect gay and transgender people against sex discrimination in health care, the Biden administration declared Monday, reversing a Trump-era policy that narrowed rights at the intersection of changing social mores and sensitive medical decisions.

It marked the latest step by President Joe Biden to advance the rights of gay and transgender people across society, from military services, to housing, to employment opportunities.

The policy announcement by the Department of Health and Human Services affirms that federal laws forbidding sex discrimination in health care also protect gay and transgender people. The Trump administration had defined “sex” to mean gender assigned at birth, thereby excluding transgender people from, the law’s umbrella of protection…

…Speaking for the medical community, the American Medical Association said in a statement the Biden administration “did the right thing” by ending “a dismal chapter which a federal agency sought to remove civil rights protections.”…

…Monday’s action means that the HHS Office of Civil Rights will again investigate complaints of sex discrimination on the basis of sexual orientation and gender identity. Hospitals, clinics and other medical providers can face denial of Medicare and Medicaid payments for violations of the law…

The U.S. Department of Education Office of Civil Rights (OCR) posted Resources for LGBTQ Students. Here are some important parts of it:

OCR enforces Title IX of the Education Amendments of 1972 (Title IX), as amended, 20 U.S.C. §§ 1681 et. seq., and its implementing regulation at 34 C.F.R. Part 106, which prohibits discrimination on the basis of sex in any education program or activity receiving Federal financial assistance from the Department. Every elementary and secondary school system, college and university, vocational school, and proprietary school that receive funds from the U.S. Department of Education has an obligation to protect all students, including LBGTQ students, from unlawful sex discrimination.

Although Title IX has long been understood to encompass discrimination based on a student’s not conforming to sex-based stereotypes, neither Title IX itself nor its implementing regulations mention discrimination on the basis of a student’s sexual orientation or gender identity. On June 15, 2020, the U.S. Supreme Court held that discrimination on the basis of an individual’s status as gay or transgender constitutes discrimination within the meaning of Title VII of the Civil Rights Act of 1964. See Bostock v. Clayton City, Ga. … (“[I]t is impossible to discrimination against a person for being homosexual or transgender without discriminating against that individual based on sex.”).

OCR does not enforce Title VII. Nevertheless, in cases where a complaint alleges that a school’s action or policy excludes a person from participating in, denies a person the benefits of, or subjects a person to discrimination under an education or activity on the basis of sex, the Bostock opinion guides OCR’s understanding that discrimination against a person based on their sexual orientation or gender identity generally involves discrimination on the basis of sex…

In short, the Biden-Harris administration, and many of the Departments that are part of it, are going to protect LGBTQ+ people from being discriminated against due to their sexual orientation or gender identity. The ruling in Bostock v Clayton City, Ga. is the precedent for protecting people who are transgender from discrimination in health care, employment, housing, education, “bathroom bills”, and the ability to play on the sports team that matches their gender.

I am expecting lawsuits to be filed against the disgusting states who enacted legislation that was specifically designed to cause harm to people who are transgender. It is my hope that U.S. Attorney General Merrick Garland might be able to get the ball rolling on wiping out all the illegal anti-trans laws.

Originally published at https://bookofjen.net on May 16, 2021.

Freelance writer with invisible illnesses and chronic pain. Poet, podcaster, video game player, creator of strange artwork, they/them @OwnkaMav

Get the Medium app

A button that says 'Download on the App Store', and if clicked it will lead you to the iOS App store
A button that says 'Get it on, Google Play', and if clicked it will lead you to the Google Play store