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THE WORD

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The legal struggle for transgender rights

A
guest column by
Josh Langdon:

Bathroom rights of
transgender
people
THE GOOSE IS LOOSE
have dominated news
A change in culture
headlines recently. In
and support from naApril 2016, the United
tional leaders has pushed
States Fourth Circuit
the issue of transgender
Court of Appeals
equality to the front
sided with a transgender
pages, but states are
female-to-male high
Michael
struggling with how to
school student named
approach the issue.
Gavin after he sued his
Chanak
For example, in some
Virginia school board
states, transgender
over a policy that forced
persons are not permitted to change their
transgender students to use separate,
gender marker on their birth certificate,
gender-neutral restrooms.
even though they can change their drivers
The Fourth Circuit held in G.G. v.
license and United States passport. Other
Gloucester School Board that Title IX
states, like North Carolina, have taken
of the of the Education Amendments of
specific steps to exclude transgender
1972 protects the rights of Gavin and othpeople from anti-discrimination protecer transgender students to use sex-specific
tions.
bathrooms that are consistent with their
Gender identity is complex and often
gender identity. The Fourth Circuit did
misunderstood. By definition, gender
not rule on Gavins equal protection claim,
identity is ones innermost concept of self
but rather gave deference to administrative
as male, female or a blend of both which interpretations and regulations of Title IX.
can be the same or different from the sex
The Court declared that Congress has the
assigned at birth. Every person has a genpower to amend Title IX should it want to
der to which they identify. Transgender is
specifically exclude transgender students
an umbrella term that encompasses people from Title IX protections.
whose gender identity does not match
In May 2016, President Obama
what society believes is appropriate based
directed schools nationwide to allow
upon the sex designated on their birth
transgender students to use the bathroom
certificates.
that corresponds with their gender idenOnes gender identity also does not
tity rather than the sex designated on their
imply any specific sexual orientation,
birth certificate. The order sparked harsh
so transgender people may identify as
criticism from opponents, who lambasted
straight, gay, lesbian or bisexual. Gender
the action as federal overreach into school
dysphoria, which is not diagnosed in
systems that should instead be led by local
every transgender individual, is clinically
leaders.
significant distress caused when a persons
U.S. Attorney General Loretta Lynch
assigned birth gender is not the same as
also filed a lawsuit against North Carothe one with which they identify.
lina after it became the first state to

explicitly ban transgender people from

using the bathrooms of their choice. The
North Carolina law also invalidated local
anti-discrimination laws passed by cities
such as Charlotte. Obama and Lynch
both premised their decisions on gender
identity being a protected classification
synonymous with sex in federal statutes,
which has been a clear trend in a series of
administrative interpretations.
In May 2016, the U.S. Department of
Health and Human Services announced
regulations interpreting the Affordable
Care Acts nondiscrimination clause to
include gender identity in sex discrimination. While the full impact of the HHS
regulations is unclear, most health providers and insurance companies will no longer be permitted to discriminate against
transgender people by refusing access to
health care needed to transition.
Transgender employees are also garnering protections from sex-based discrimination under Title VII of the Civil Rights
Act of 1964.
Quite simply the trend is that Title
VII is not exclusive to biological sex and
precludes discrimination that occurs as a
result of cultural and social aspects associated with masculinity and femininity. The
law forbids discrimination when it comes
to any aspect of employment, including
hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits and
any other term or condition of employment.
Employers should scrutinize their policies and ensure that they are in compliance with the law. A prospective or current
employees gender identity should not be a
basis for any adverse employment-related
action. Schools and school boards should

July 2016

also pay close attention to the decisions

surrounding Title IX. While the future
is unclear, transgender individuals are
presumably protected from sex-based
discrimination until statutes are changed
or constitutional claims are ruled upon.

Josh Langdon is an attorney in Cincinnati, Ohio, with a focus on family law,

estate planning and
administration and
civil litigation. He
spends a significant
amount of time doing
legal work for the
LGBT community.
Langdon received
his Bachelor of Arts
from the College of
Charleston and his
Juris Doctor from the
University of Cincinnati College of Law.
He was Treasurer of the South Carolina
College Republicans and worked for the
Human Rights Campaign Foundation in
Washington, D.C., prior to entering law
school. While at UC, Josh was President of
Out & Allies, the LGBT student group, and
a member of the Moot Court Honor Board.
He is now actively involved with the
Cincinnati Bar Association, serving as the
Chair of the LGBT Interests Committee,
as well as the Ohio State Bar Association,
serving as the chair of the LGBT ORC
Revisions subcommittee working to revise
the Ohio statutes to better serve gay and
lesbian families. O
Michael Goose Chanak is a longtime
active member of the Cincinnati LGBT
community. Contact him at goose@maryxgoose.org or www.maryxgoose.org.