Washington leads multi-state effort supporting legal protections
OLYMPIA — Late yesterday, Attorney General Bob Ferguson led a coalition of 18 states and the District of Columbia in urging the United States Supreme Court to uphold a lower court ruling recognizing the right of a transgender student in Virginia to use the school bathroom corresponding to his gender identity.
The states, co-led by Ferguson and New York Attorney General Eric Schneiderman, filed an amicus, or “friend of the court,” brief in Gloucester County School Board v. G.G.
Gavin Grimm, a transgender student, filed a lawsuit after his school board changed district policy in reaction to some parents’ complaints, barring him from using the boys’ restroom. A federal district court dismissed his claim, but the Fourth Circuit Court of Appeals reversed that ruling and ordered the district court to continue hearing the case. Grimm brought his suit under Title IX of the Civil Rights Act, which prohibits discrimination based on sex.
Ferguson argues that in addition to constituting sex-based discrimination under Title IX, discrimination against transgender people harms states, poses serious public health risks and causes enormous harm to transgender people.
“Discrimination against transgender people has no legitimate basis and serves only to injure a group that is feared for being different,” the states’ brief asserts. “The suffering such discrimination causes is all too real. It harms transgender people at work, at school, and in other settings, causing tangible economic, emotional, and health consequences.”
Transgender individuals face pervasive discrimination in school, where transgender students experience levels of discrimination, violence, and harassment that are much higher than for non-transgender students.
In the 2015 National Transgender Discrimination Survey, the largest survey of transgender people to date, 77 percent of respondents who were known or perceived as transgender in grades K-12 reported experiencing harassment by students, teachers or staff. More than half of transgender students (54 percent) reported verbal harassment, and more than a third reported physical attack (24 percent) or sexual assault (13 percent).
Also from the brief: “Transgender people have long been subject to murder, assault and other crimes on account of their gender identity. Recent data indicate that such incidents continue to occur and, in fact, are on the rise.”
A November 2016 report by the Federal Bureau of Investigation showed a sharp increase in hate crimes against transgender people in 2015. And since late 2016, at least seven transgender people, all women of color, have been murdered in the United States.
Transgender individuals attempt suicide at a rate nine times that of the general population. A recent study found that transgender people who had been denied access to bathroom facilities were nearly 20 percent more likely to attempt suicide than transgender people who had not.
The states argue that there are proven, cost-effective ways to maximize privacy for users of school restrooms and other facilities without discriminating.
For example, Washington’s Office of the Superintendent of Public Instruction offers this guidance: School districts are to allow students to use the restroom that is “consistent with their gender identity consistently asserted at school,” and “any student — transgender or not — who has a need or desire for increased privacy, regardless of the underlying reason, should be provided access to an alternative restroom (e.g., staff restroom, health office restroom).” In this way, “students who may feel uncomfortable sharing the facility with the transgender student(s) [have] the option to make use of a separate restroom and have their concerns addressed without stigmatizing any individual student. No student, however, should be required to use an alternative restroom because they are transgender or gender nonconforming.”
Twenty states, including Washington, offer explicit civil rights protections for transgender individuals. The Washington Law Against Discrimination and the Equal Educational Opportunity Law provide important protections for transgender and gender non-conforming students.
Senior Deputy Solicitor General Alan Copsey was the lead author of the brief for Washington.
Oral argument in the case is set for March 28.
The Office of the Attorney General is the chief legal office for the state of Washington with attorneys and staff in 27 divisions across the state providing legal services to roughly 200 state agencies, boards and commissions. Visit www.atg.wa.gov to learn more.
Peter Lavallee, Communications Director, (360) 586-0725; PeterL@atg.wa.gov