In a fierce legal exchange this week, the State of North Carolina and the federal government sued each other over the state’s controversial law House Bill 2 (HB2), which requires transgender people to use public bathrooms in accordance with the sex listed on their birth certificate rather than their gender identity. This legal sparring comes on the heels of the Department of Justice (DOJ)’s instruction to North Carolina last week that HB2 violates federal nondiscrimination laws and that North Carolina could lose federal funding if it keeps the law in place.
Rather than rectifying the situation, North Carolina Republican Gov. Pat McCrory doubled down on Monday, filing a federal lawsuit against the DOJ arguing that HB 2 does not violate federal law because sex discrimination protections do not cover gender identity. Later that day, the DOJ filed a countersuit against McCrory and the University of North Carolina (UNC) system, again claiming that HB2 violates federal law.
One of the laws in question is Title IX of the Education Amendments of 1972, which protects against sex discrimination in schools, and which the Department of Education has interpreted to also include protection for transgender students. Notably, McCrory’s lawsuit only mentions two of the three federal laws the DOJ says HB2 violates; he remains silent on Title IX. This may be because of a recent ruling by the Fourth Circuit Court of Appeals, whose jurisdiction includes North Carolina. The Fourth Circuit’s ruling instructed a lower court to use the department’s transgender-inclusive interpretation of Title IX in a court case on student bathroom access.
Though McCrory’s lawsuit ignores Title IX, HB2 has significant ramifications for transgender students. While McCrory called the federal government a bully for pushing back against HB2, Attorney General Loretta Lynch brought the issue back to the real bully, McCrory himself. Indeed, in a letter to the Governor, transgender ninth grader Skye Thomson expressed the pain of being bullied by his state and governor on top of all the bullying he and other transgender students already face, saying, “HB2 just gives other students all the more reason to hate us.” Finn, another transgender student, has attended four different high schools in the state searching for equal treatment. In a video for the Center for American Progress, he said HB2 “helped enforce a culture that ‘it’s okay to invalidate transgender people’s identities’…[it] says that I am a problem.”
The law also makes bathroom access disproportionally more difficult for transgender youth in North Carolina. HB2 requires people to use restrooms in government facilities, including schools, based on the sex listed on their birth certificate. Under North Carolina law, however, transgender people can only change their birth certificate to reflect their gender identity after they undergo gender reassignment surgery. Many transgender people cannot afford or do not want that surgery, but youth face even more obstacles due to age and parental consent requirements. Coupled with HB2, these laws disproportionately require young transgender people to use bathrooms that either conflict with their gender identity or are separate from other students. This can mean facing harassment or violence, or, if they avoid using a public bathroom altogether, health issues and isolation from public life.
In fact, any law that targets transgender people is likely to place a heavier burden on young people. According to the Williams Institute, between 1.7 and 3.2 percent of youth ages 13-19 identify as transgender, compared to just 0.3 percent of the adult population. Given the number of students enrolled in both K-12 public schools and public higher educational institutions like the UNC system, HB2 not only affects, but disrespects and demeans, tens of thousands of transgender students in North Carolina.
To this end, the Department of Justice and Department of Education sent a letter Friday, May 13, to public schools and colleges that receive federal funding with guidance on the treatment of transgender students. The letter clarifies that Title IX’s prohibition of sex discrimination includes transgender students, meaning schools receiving federal funding cannot discriminate against transgender students because of their gender identity. The letter reads, in part:
“Schools across the country strive to create and sustain inclusive, supportive, safe, and nondiscriminatory communities for all students. In recent years, we have received an increasing number of questions from parents, teachers, principals, and school superintendents about civil rights protections for transgender students. Title IX of the Education Amendments of 1972 (Title IX) and its implementing regulations prohibit sex discrimination in educational programs and activities operated by recipients of Federal financial assistance. This prohibition encompasses discrimination based on a student’s gender identity, including discrimination based on a student’s transgender status.”
Though the letter offers significant and historic support for transgender students nationwide, it is not codified into law, meaning transgender students are still at risk of discrimination. Further, White House Press Secretary Josh Earnest said Thursday that the White House would not cut off federal funding to North Carolina as the legal battle over HB2 continues in court. As the battle wages on, transgender students may still face discrimination in school and elsewhere.