46 Words: Understanding the Importance of the Department of Justice’s Response to HB2
Posted by Jen Laws on 05/11/2016
Hi y’all - Riley from RAD Remedy here. As you likely know, we at RAD are all about encouraging folks to be informed. That concern extends to political hullabaloo like North Carolina’s HB2 law. What follows is a long but important read from Jen Laws, a thinky friend of RAD, about why the speech that Loretta Lynch gave this week and the Department of Justice’s response to HB2 was so important and how it will impact us as a community. It is game changing, y’all, and it will impact everything from our ability to use the restroom to the quality of the medical care we will be able to receive. Thanks to Jen for educating us, making us think, and being a badass human. - RJ
This post was edited on May 13, 2016 because the Department of Health and Human Services and the Department of Education issued separate directives that impact the information that was originally given here. Since it was such a short time after this was published, we felt it would be better to contain all of the information in one place at this time. As of May 13, 2016, all of the information is current.
A Guest Post by Jen Laws
When thinking about my personal choice of words for how the government of the United States and the majority of its states and municipalities has historically behaved toward transgender individuals, I have a few choice words. None of them are “polite.”
“No matter how isolated, afraid, and alone you may feel today, know this – the Department of Justice and the entire Obama Administration want you to know that we see you, we stand with you, and we will do everything we can to protect you going forward.” – Loretta Lynch, United States Attorney General, May 9th, 2016.
These are the 46 words that changed everything. Take a moment to rejoice. Cry, laugh, hug someone, hug yourself. Whatever you choose to do, whatever feels right, do it. Today, the United States Department of Justice and the President of the United States, independently of one another, though in cohesion, decided to stand with us. For that, today is a Great Day.
So there’s a backstory right? How did we come to regulating who can pee where and what does it all mean for us? Why does the DOJ think we have room to stand and state of North Carolina not?
Well, it all kind of started in 1964 with the Civil Rights Act. I say kind of because legal precedent and the language of laws is living. Our government and courts go through a rigorous process of defining and even redefining how narrow or far reaching a law can be. As far as the Civil Rights Act goes, certain parts (provisions) of the law gave specific protections to all people based on certain types of innate characteristics, creating what’s called a “protected class”. These protected classes could seek protection under the law in certain situations (Titles). Title VII concerns workplace protections, including private sector employers, and Title IX concerns protections in publicly-funded education facilities.
In response to the Civil Rights Act, the United States government created an independent body to investigate claims of discrimination and help citizens navigate claims when they think they’re being discriminated against based on their protected class status in the employment field. This body is called the Equal Employment Opportunity Commission (EEOC). The EEOC regularly pursues law suits against employers who have discriminated against employees and potential employees.
Next in this story comes a Supreme Court Ruling in 1989 called Price Waterhouse. This case extended the definition of “sex based discrimination” to include “sex stereotyping”; meaning, for example, an employer cannot say a woman is not behaving feminine enough to receive a promotion or be hired or have her pay cut. The Court, in essence, ruled that an employer does not get to decide who is or is not man or woman enough to deserve being treated fairly. An employer must treat all employees fairly and equally no matter how masculine or feminine they present themselves.
This ruling is very important as it “outranks” lower court rulings that conflict. Remember this piece.
In 2012, the EEOC successfully battled corporate giant Macy’s (in Macy v. Holder) in arguing that transgender employees are protected under the prohibition of sex based discrimination of the Civil Rights Act because of Price Waterhouse. The EEOC essentially argued that telling a transgender employee that they must conform to an employer’s ideas of what is and is not feminine or masculine enough a presentation is a type of sex stereotyping, prohibited by the Price Waterhouse ruling.
Specifically, the EEOC adopted guidance in its “Strategic Enforcement Plan”, 2013-2016, including seeking to protect transgender employees. In addition to this, OSHA (Occupational Safety and Health Administration) issued similar guidance in 2014.
Title IX prohibits exclusion and discrimination in publicly-funded educational settings on the basis of sex. In 2014, the Department of Education sent out a letter to every school that receives funding from the Federal Government stating that transgender students are protected by the prohibition of sex based discrimination of Title IX of the Civil Rights Act. On May 13, 2016, the DOE sent out a clarification that firmed up the fact that schools that recieve federal funding have to accomodate the needs of transgender students without requiring things like a medical diagnosis or surgeries.
Unlike with the EEOC, which must fight in courts to establish how far anti-discrimination rules reach, unless and until Congress passes a law changing this rule, the DOE is the sole decision maker when it comes to how these protections can be applied. The DOJ is allowed to enforce this rule on behalf of the DOE. And citizens may sue to have these protections enforced.
Earlier this year, the American Civil Liberties Union (ACLU) successfully argued in Virginia that their school had violated the Civil Rights Act according to the rules of the DOE by not allowing a transgender student to use the bathroom consistent with his gender identity (in G.G. v. Gloucester County School Board). Remember this part.
Violence Against Women Act
The Violence Against Women Act (VAWA) was enacted in 1994 to improve criminal justice responses to domestic violence, sexual assault, and stalking and increase the availability of services to those victims. This is the more political part of the DOJ’s case against the state of North Carolina because the state receives federal funds by way of grants under the VAWA. The VAWA reauthorization in 2013 added the language prohibiting discrimination of “actual or perceived” “sex” and “gender identity” to any program using money supplied under this law.
The Current Issue
North Carolina’s Argument
So what happened in North Carolina that makes challenging this bill in court seem like a good idea? The state of North Carolina has done some rather spectacular language gymnastics to say that its bathroom bill (HB2) is not discriminatory. The lawsuit argues that transgender status is not a protected class. The lawsuit also argues that even if transgender status was a protected class, that HB2 does not discriminate because all affected parties are required to use the restroom of their assigned sex at birth. North Carolina has gone out of its way to ignore Price Waterhouse and the growing list of rulings favoring the EEOC’s application of the ruling to transgender employees. North Carolina also ignores the ruling in the Virginia transgender student case. North Carolina stands to lose considerable revenue through companies and events choosing to cease their business in the state.
The DOJ’s Argument
The DOJ argues that transgender men and men assigned male at birth are similarly situated and that transgender women and women assigned female at birth are similarly situated; that transgender women are female, no matter what they were assigned at birth, and that transgender men are male, no matter what they were assigned at birth. And that means telling transgender women to use men’s restrooms violates Title VII because other females are not being forced to use a restroom not suited to them.
Both the DOJ and the state of North Carolina are hoping to avoid a long legal battle. They both asked their respective district courts for “declaratory relief”, meaning a ruling without a trial. The DOJ has chosen not to go for the “nuclear” option and ask for removal of federal funds from the state’s education system, some $6 billion annually in total that the state of North Carolina is gifted from the federal government to make sure students in both primary and higher education institutions can get the education they seek.
What Does This Mean for You and the Community?
Lots of things. Lots and lots of things. Just not today.
This will not be settled overnight, or even at the end of the initial lawsuits. Because politics are what they are, this will take time. The DOJ and the state of North Carolina filed their lawsuits in different District Courts in North Carolina. Likely, they were each seeking a court where they felt they would be more likely to end up with a judge who will favor their arguments. It is expected that no matter the outcome of either of the law suits, the ruling(s) will be appealed to the next higher court, the 4th Circuit Court of Appeals. The 4th Circuit ruled against Virginia’s same-sex marriage ban in 2014 and was the same court that heard G.G. v. Gloucester County School Board, but it also has some very conservative rulings. Appealing that decision could lead to the Supreme Court. The Supreme Court is still currently short one judge for a full panel. If the Supreme Court either refuses to hear the case or does not have a majority opinion (5-3 vote either way), then the ruling of the 4th Circuit would stand.
It will be as important to pay attention to the language of any rulings, in favor or against the DOJ’s interpretation and application of the law. Even the most narrow distinction between “a” and “the“ and between “and” and “or” in a judicial ruling of this wide of reach can change the meaning and reach of a ruling.
The far reaching implications of a ruling in favor of the DOJ are actually kind of huge. The EEOC has routinely and successfully found that differences in benefits offered to “similarly situated” employees on the basis of sex is a form of sex discrimination. In theory, because transgender individuals have very specific healthcare needs, this could mean that if an employer does not offer benefits that cover transition related care to an employee, they are not offering comparable healthcare benefits to transgender employees who are “similarly situated” to their cisgender counterparts.
This, in combination with Section 1557 of the Patient Protection and Affordable Care Act (“Obamacare”/ACA), the non-discrimination section of the law (which includes gender identity), could mean – and will likely mean – a whole new era of healthcare, not just for employees but for patients as well.
The ACA specifies that a healthcare provider may not discriminate against transgender patients and insurance providers receiving federal money (ie, marketplace plans) may not discriminate against transgender purchasers. The ACA also requires certain “Essential Healthcare Benefits”, including birth control and annual exams coverage. If the DOJ successfully argues that bathroom access issues constitute a form of sex discrimination, then the case to be made with Essential Health Benefits and employer required coverage of transition related health care is a much shorter leap. The EEOC has already laid out a plan to effectively argue the requirement of transition related care health benefits. On May 13, 2016, the Department of Health and Human Services (HHS) released guidelines that mandated that insurance plans affected by the ACA (the vast majority of plans) must cover transgender people’s health needs without discrimination. This means that they must offer the same health benefits to transgender folks that they do to cisgender folks. For example, folks with a cervix will be able to receive pap smears regardless of their gender markers. Insurance companies will no longer be allowed to issue blanket exclusions around transition-related care anymore! If they offer hormone coverage for cis folks, they must offer that exact same coverage for transgender folks. They will no longer be able to classify gender affirming surgeries as either experimental nor medically unnecessary.
HHS sets July 18, 2016 as the date insurance companies must be compliant. However, the road to compliance will be bumpy. These protections will stand whatever way North Carolina goes. RAD Remedy will continue to talk about what this means in order to access care that you need.
On May 9, 2016, the language used by Loretta Lynch and the DOJ essentially means that they are coming hard against this type of legalized discrimination. IN OUR FAVOR. When we couple that with the ACA's anti-discrimination provisions, it means that trans discrimination in healthcare will be much harder to get away with. While this is super important because it means that an insurance company will have to cover your medical care (and hopefully soon, all transition-related care) and a doctor will not be able to legally deny you service, it doesn't mean that doctors and other care providers are required to learn how to treat trans folks in an affirming way (though it opens them up to lawsuits if they don't). No matter what, RAD Remedy is here for you and ready to help. Leave reviews, submit your providers... as a community, let's make sure that not only do we have access to care we need, but that the care we receive is *excellent* care.
If you suspect that you have been discriminated against on the basis of your gender identity by an employer, please contact the EEOC. http://www.state.gov/s/ocr/complaint/index.htm
If you believe you’ve been discriminated against in a healthcare setting, please contact the OCR. http://www.hhs.gov/civil-rights/filing-a-complaint/complaint-process/index.html
In the Meantime...
Seek out support of your community. Make new connections with supportive allies. Stay safe and look out for one another. We know all of this can be overwhelming. The folks at Trans Lifeline are available to talk anytime, and they are the only hotline staffed by trans folks for trans folks - feel free to contact them at US: (877) 565-8860 or Canada: (877) 330-6366.
In the end however, it’s important to remember this issue will come and go. Like the Rev. Dr. Martin Luther King Jr. shared, the arc of the moral universe is long but it bends toward justice. Eventually, we will win our protections under the law. If not in this particular instance, we will in the future.
Sit tight for now. This could very well be a wild ride until justice prevails.
For a list of EEOC cases with regard to transgender rights, please visithttps://www.eeoc.gov/eeoc/newsroom/wysk/lgbt_examples_decisions.cfm
Jen Laws is an independent talking head covering a wide range of political and social issues. Recently quoted in multiple Cosmo articles regarding gender, he is active in HIV and transgender advocacy in South Florida. He can most often be found taking time to write regarding a wide range of topics from personal experience to the most pressing political issue of the day to sharing stories of success and inspiration. His most recent project of note is co-producing the South Florida alternative education and community building event, Primal Leather, with his wife and Ma'am, MsKitty. Primal Leather's continuing beneficiary is Mr. Friendly. Often referred to by friends as a "walking encyclopedia," he takes pride in an ability to analyze data, information, and people quickly. Currently, Jen spends business hours as Perfect Fit Brand's customer service representative and website manager.