The Trump administration may have sided with opponents of transgender rights by eliminating guidance barring anti-trans discrimination in schools, but more than 50 businesses, nearly 200 members of Congress and 80 school administrators and school districts are taking a more affirmative view in friend-of-the-court briefs before the U.S. Supreme Court.
Those briefs filed Thursday call for a ruling in favor of Gavin Grimm, a transgender student who’s suing his Virginia high school in Gloucester County to use the boys’ room consistent with his gender identity. A ruling from the Supreme Court asserting Title IX of the Education Amendments of 1972 assures transgender students access to the restroom consistent with their gender identity would reinforce transgender rights nationwide.
One such 23-page brief, organized by the Human Rights Campaign, was signed by 53 companies, including Apple, Airbnb, IBM, Microsoft, PayPal, Tumblr and Twitter, and urges the court to rule for Grimm.
“By discriminating against and harming amici’s transgender employees, customers and their families, the policy, and similar policies and statutes that may arise if the policy is permitted to stand, threatens amici’s diverse and inclusive workplaces and their bottom lines,” the brief says. “In light of the lack of any reasoned justification for the policy, and because of the significant adverse effects on the transgender community and resultant harm to amici, amici respectfully urge the Court to determine that transgender students are protected by Title IX of the Education Amendments of 1972.”
Another high-profile brief was signed by 196 lawmakers in both chambers of Congress. With opponents of transgender rights citing introduction of the Student Non-Discrimination Act as evidence Congress didn’t intend to include transgender people in Title IX, the brief argues the pending legislation in no way makes existing law less inclusive.
“Indeed, amici believe that Title IX already protects transgender children,” the brief says. “Yet decades after Oncale and Price Waterhouse, and despite overwhelming agreement among the federal courts that transgender individuals are protected from discrimination under those cases, Title IX remains inconsistently interpreted and enforced across the country. The SNDA framework was therefore designed to operate in parallel with Title IX, to ensure transgender children are protected, explicitly, from discrimination in public schools.”
The 25-page brief was led in the U.S. House by gay Rep. Jared Polis and in the U.S. Senate by Sen. Al Franken (D-Minn.) and lesbian Sen. Tammy Baldwin (D-Wis.). Other key signers are House Minority Leader Nancy Pelosi (D-Calif.) and Senate Minority Leader Charles Schumer (D-N.Y.).
The brief has only one Republican signer, Rep. Ileana Ros-Lehtinen (R-Fla.), who has a transgender son and is regarded as the most pro-LGBT Republican in Congress.
— Ileana Ros-Lehtinen (@RosLehtinen) March 2, 2017
Another 61-page brief organized by Lambda Legal and the law firm Pillsbury Winthrop Shaw Pittman LLP gives voice to superintendents, principals and other school officials from 31 states and D.C. who argue policies respecting gender identity minimize disruptions and create a safe environment for all students.
“Amici have addressed and in some cases personally grappled with many of the same fears and concerns in their own schools and districts,” the brief says. “However, in amici’s professional experience, none of those fears and concerns has materialized in the form of actual problems in their schools. Instead, inclusive policies not only fully support the reality of transgender students’ circumstances, but also foster a safer and more welcoming learning environment for all students.”
One brief organized by the Transgender Legal Defense Fund includes the voices of 101 transgender advocates, including actress Laverne Cox; TV personality Caitlyn Jenner; Chris Mosier, the first out transgender athlete to qualify for a U.S. national team; and Shane Ortega, the first person considered to serve in the U.S. military while being openly transgender.
“The 101 amici come from many different walks of life and are diverse in age, race and socioeconomic status; however, they are united in their strongly held belief that resolutions like the one adopted by the Gloucester County School Board are discriminatory and inhibit transgender individuals from realizing their full potential in their personal and professional lives,” the brief says.
The New York law firm Kramer Levin filed a brief on behalf of numerous major religious organizations, including the General Synod of the United Church of Christ, the Jewish Theological Seminary and Muslims for Progressive Actions, as well as more than 1,800 individual faith leaders, such as Presiding Bishop of the Episcopal Church Michael Curry.
“Amici come from faiths that have approached issues related to gender identity in different ways over the years, but are united in believing that the fundamental human dignity shared by all persons requires treating transgender students like Respondent Gavin Grimm in a manner consistent with their gender identity,” the brief says.
Yet another brief was filed by attorneys general in New York State, Washington State, California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New Mexico, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia and D.C.
Although the Trump administration maintains the issue of transgender restroom access is best left to the states, rather than the federal government, those states cite the need for the interpretation of federal law to assure protections for transgender students nationwide.
“If allowed to stand, discriminatory policies like the one at issue here will make travel to other jurisdictions more difficult for residents of our states who are transgender or who do not conform to traditional sex stereotypes,” the brief says. “And such policies may dissuade them from such travel altogether. Those residents thus face barriers in their personal or professional lives that are not faced by other residents of our States—precisely the sort of disparate treatment on the basis of gender identity that the amici States have sought to prevent.”
A notable absence from the announced briefs was a more general filing by LGBT supportive Republicans. Ken Mehlman, the gay former chair of the Republican National Committee, has organized such briefs before the U.S. Supreme Court in the cases challenging California’s Proposition 8 and state marriage bans across the country. Neither he, nor other Republicans who helped organize the Republican marriage briefs, responded to the Washington Blade’s request for comment on whether there would be a Republican brief in favor of transgender rights.