Florida’s Draconian Bathroom Penalties & Faux “Intimacy”

Everybody's searching for intimacy 
Ooh ooh ooh ooh 
Everybody's hurting for intimacy 
Ooh ooh ooh ooh

The New York Times reported (Florida Approves Tough Discipline for College Staff Who Break Bathroom Law) that on Wednesday, August 23, 2023 the Florida Board of Education adopted new rules requiring the firing of employees at the state’s 28 regional college campuses who twice use (“despite being asked to leave”) restrooms designated for people who were assigned a different sex at birth than the employee was. The staggeringly harsh rule ostensibly implements, though is not required by, Florida state law enacted in May that limits gendered restroom access by the sex people were assigned at birth. The new regulation is expected to be echoed soon in new rules for the State University System, “which runs the [state’s] flagship campuses,” and whose governing body has been appointed by Gov. Ron Desantis, as were the members of the Florida Board of Education.

The Times quotes Grazie Pozo Christie, a radiologist appointed to the Florida Board of Education who supported the new penalties. Dr. Christie is a Senior Fellow for the Catholic Association and hosts a radio show “Conversations with Consequences.” She explained her vote with the not uncommon but specious claim that “Bathroom spaces are very intimate and private.” “Intimate” could have a number of meanings in this context, but as I have explained in the Minnesota Journal of Law and Inequality, “notions of intimacy as relational, intimacy as a sharing of personal information, intimacy as emotional safety, and intimacy as in intimate anatomical parts” fail “either to accurately describe common restrooms or to justify denying transgender persons gender-appropriate access to such facilities, or both.” (David B. Cruz, Making Sex Matter: Common Restrooms as “Intimate” Spaces?)

Trump and the Promise of LGBTQ Equality

I’ve always got my head in the clouds

Hope that I could find

One of them that’s silver-lined

As I write, it appears that Donald J. Trump will take office as the forty-fifth President of the United States.  Some (many?) people, myself included, deeply feared this and are anxious or worse about the prospect.  So, in an effort to help myself confront this new reality, I offer this brief exploration of one possible way to deal with it.

“As your president, I will do everything in my power to protect LGBTQ citizens,” Trump promised in his nomination acceptance speech to the Republican National Convention in July 2016.  Americans should hold him to that promise.  It doesn’t mean, as Trump seemed to think, we should embrace blatantly unconstitutional anti-Muslim immigration policies.  But it could and should mean a great deal.

(Reuters/Carlo Allegri)

Trump’s promise to protect LGBTQ persons – and, yes, I’m deliberately overlooking his rhetoric extending solicitude to citizens, since the Constitution guarantees equal protection of the laws to persons, not just citizens – means he should support the Equality Act and use the power of the presidency to help it become part of the law of the land.  In 2000 he publicly supported amending the Civil Rights Act of 1964 to ban sexual orientation discrimination (see his interview with The Advocate here); the Equality Act would accomplish much the same, but in a more comprehensive matter that would also protect against anti-transgender discrimination and that leaders on these issues in Congress believe would be most effective.

Trump’s promise to protect LGBTQ persons means he should abandon his intention to nominate Supreme Court Justices who would overrule the Court’s 2015 Obergefell decision, which held that the Constitution forbade government to exclude same-sex couples from legal marriage (aka “civil marriage”) on the same terms and conditions civil marriage is offered to different-sex couples.  The interaction of civil marriage and the U.S. legal order generally may be criticized on various grounds – why should any of us have to count on employment benefits that may or may not be offered in order to secure a basic right such as healthcare for us and our marital partners and children?  But so long as that is how the U.S. system is structured, LGBTQ people and our families will not be protected, and certainly not be protected equally with heterosexually identified persons, if we are denied access to or recognition of our marriages.

Trump’s promise to protect LGBTQ persons also means he should reject efforts to exempt us from the benefits of our state, local, and national antidiscrimination laws.  He should not repeal executive orders that forbid sexual orientation and gender identity discrimination, which would expose us to the harms of the discrimination those orders are designed to prevent.  He should not support the so-called First Amendment Defense Act, which would grant a government sanctioned right to discriminate to people who disapprove of the marriages or other relationships of LGBTQ persons.  Such targeting of us is the opposite of protection.

There is much, much more that Donald Trump would have to do as President to live up to his promise to “do everything in my power” to protect LGBTQ persons.  Let us hope that he does.  And more than that, let us insist that he does.  Let us never let him forget his words.  Some of Trump’s campaign pledges were unjust; some were unconstitutional.  But the pledge to protect LGBTQ persons to his utmost extent is in itself noble, worthy of our constitutional order.  We all need to press our representatives in government to hold Donald Trump to this promise of equality.

Federal Government Issues Guidance for Schools, Educational Programs, re: Transgender Students

“When it’s time to change, you’ve got to rearrange

Who you are and what you're gonna be”

The Department of Justice and the Department of Education today issued a significant guidance document today to help schools comply with their obligations toward transgender students under Title IX of the Education Amendments of 1972 (“Title IX”) – which is a federal statute modeled after part of the Civil Rights Act of 1964 – and the federal regulations implementing that law.  This “dear colleague” letter does not subject schools to any new binding regulatory commands, but it clarifies how these two agencies interpret extant laws.  The Department of Education’s blog introduces the guidance, illustrating the importance of assuring schools respect the rights of all students including transgender students and explaining the departments’ action as responsive to requests from the education community.   Title IX prohibits sex discrimination in educational programs and activities receiving federal funds, as the vast majority of schools do.  Consistent with the trend in federal courts (much of which was, disgracefully and likely disingenuously, omitted from North Carolina’s complaint in the state’s lawsuit against the Justice Department for its actions in response to HB2), the guidance explains that the Departments of Justice and Education have interpreted Title IX’s ban on sex discrimination to include a prohibition on “discrimination based on a student’s gender identity, including discrimination based on a student’s transgender status.”    Under Title IX and its regulations, as the departments of the federal government charged with enforcing them have interpreted these laws, schools must not discriminate against transgender boys (who were identified as female at birth but whose gender identity is male) or transgender girls (who were identified as male at birth but whose gender identity is female).  Transgender boys are to be treated as the school treats boys generally; transgender girls are to be treated as the school treats girls generally.  Most prominently under discussion these days due to North Carolina’s anti-civil rights HB2, if a school provides separate spaces for students of different sexes, it must allow transgender students to use the space consistent with their gender identity.  Thus, transgender boys must be allowed to use boys’ restrooms, and transgender girls.  This requirement is how the departments had already been interpreting the relevant federal laws.   In addition, the guidance makes clear that schools must ensure a safe and nondiscriminatory environment for their students, including taking effective steps to preclude hostile environments created by “[h]arassment that targets a student based on gender identity, transgender status, or gender transition.”  The guidance suggests that school staff and contractors are to use student names and pronouns consistent with the student’s gender identity, regardless of what may be specified on formal identity documents such as birth certificates, which can be difficult or impossible to amend to reflect correctly a person’s gender identity.  The guidance also makes clear that this can be important to protecting the confidentiality of a student’s transgender status.   The guidance letter does what this kind of document is supposed to do: provides significant guidance to schools and educational programs across the country concerning their legal requirement not to discriminate on the basis of sex.  Unlike the Justice Department’s letter to North Carolina, which violated transgender students’ rights in state law, HB2, rushed through from introduction to adoption in a single day in an extraordinary special session of the legislature, today’s guidance document does not threaten any school with loss of federal funding.  It does, however, make clear what the relevant federal department understand the governing law to mean for schools.  It seems likely, then that schools that are seeking in good faith to provide equal educational opportunities to all their students will take the opportunity to change their policies, or adopt ones, to do what is legally required when it comes to their transgender students, who deserve the same chance to learn and to thrive as all others.

   

“A little bit of living, a little bit of growing all adds up to you”

Wiliams Institute Study Supports Inclusive ENDA

"When heterosexism strikes, strike back"

The U.S. House of Representatives held hearings today on H.R. 3017, the Employment Non-Discrimination Act of 2009 (ENDA), which would prohibit employment discrimination on the basis of sexual orientation and/or gender identity. Brad Sears, Executive Director of the Williams Institute, a national research center on sexual orientation and gender identity law and public policy at UCLA School of Law, testified in support of the bill.

Sears summarized the findings of a twelve-month research study conducted by the Williams Institute, which found widespread and enduring discrimination on the basis of sexual orientation and on the basis of gender identity by state and local government as well as in the private sector. These findings support the conclusion that Congress has the power to enact ENDA under Section 5 of the 14th Amendment, which grants Congress the authority (among other things) to enforce the guarantees of that Amendment's Equal Protection Clause.

Congress would assuredly have the constitutional authority to adopt ENDA under its power to regulate interstate commerce. Congress's Section 5 power is important, however, because it (and not the commerce power) would allow Congress to authorize private individuals who have been discriminated against by state governments to sue those governments for money damages to compensate them. Without that authority, states would be able to assert "sovereign immunity" as a shield against monetary awards under current constitutional law.

If you have not already done so, please let your Representative know that you want her or him to stand up for fundamental fairness and support the right of Americans of every sexual orientation and gender identity to work free of invidious discrimination. You can reach your Representative by dialing 202-224-3121 and giving the operator your zip code; ask her or him to support and to sponsor ENDA, H.R. 3017.


Disclosure: I am a Visiting Scholar at the Williams Institute this semester, as I was in Spring 2003, and I remain a member of the Institute's Faculty Advisory Committee; however, I was not involved in the preparation of this testimony or report.

Conference Announcement -- The Global Arc of Justice: Sexual Orientation Law Around the World

International LGBTI Law Conference, West Hollywood & Los Angeles, CA, USA, March 11-14, 2009

The Global Arc of Justice Conference will be a four-day international conference focused on advances in LGBT rights from all round the globe, with a special focus on Latin America. Convened by the Williams Institute, a research center on sexual orientation and gender identity law and policy at UCLA Law; the International Lesbian and Gay Law Association (ILGLaw); and the City of West Hollywood; the conference will be held from March 11-14 on the UCLA campus in Los Angeles and in West Hollywood, California. The conference will offer simultaneous translation in English and Spanish.

Topics covered at the Global Arc of Justice Conference will include international efforts to advance legal recognition for same sex couples; the repeal of sodomy laws in former British Colonies; efforts by national governments to end homophobia and advance LGBT equality; implementation of the Yogyakarta Principles in litigation strategies and legal scholarship; and advancement of the rights of transgender and intersex people. Conference activities will include strategy working groups, paper presentations, plenary sessions, and various networking opportunities and celebrations.

This is going to be a great conference, featuring academics, activists, lawyers, judges, and politicians from around the world. The conference web site is http://www.law.ucla.edu/WilliamsInstitute/programs/GlobalArcofJustice2009.html, and registration is open. There are special rates for those who register by February 1, and a special hotel conference rate is available with a February 15 deadline for reservations.

Update: Sorry, in my rush to get this post (largely borrowed from the conference web site) up, I forgot to note that I am the current President of the International Lesbian and Gay Law Association (ILGLaw), co-convenor of this conference. That's not what makes the conference great. It's the extraordinary range of knowledgeable participants (and the hard work of Brad Sears, Randy Bunnao, and the rest of the folks at the Williams Institute).