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States urged to ensure bathroom access for trans kids under Title IX

Schools warned that nothing has changed

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Gavin Grimm, gay news, Washington Blade
Gavin Grimm, gay news, Washington Blade

A coalition of groups is urging states to ensure transgender students like Gavin Grimm have access to school restrooms consistent with their gender identity.
(Photo by Bryan Bedder/Getty Images for GLAAD)

With the Trump administration giving up its authority to ensure transgender kids have access to the school restroom consistent with their gender identity, a coalition of 50 advocacy groups is turning to the states to enforce federal law on the issue.

In a letter dated July 18 and sent to state education officials in all 50 states, the groups maintain Title IX of the Education Amendments of 1972, which bars discrimination on the basis of sex, prohibits schools from denying transgender kids access to the bathroom according to their gender identity.

“We are concerned,” the letter says, “that the withdrawal of the Title IX guidance might lead some schools to believe that transgender students are not entitled to access bathrooms or other single-sex facilities consistent with their gender identity, or that the law or their obligations under Title IX to protect transgender students have somehow changed. That is simply not the case.”

The letter — spearheaded by the D.C.-based legal group Public Justice — is signed by Lambda Legal, the National Women’s Law Center and 47 other signatories that support transgender rights. Also among the signers is Anurima Bhargava, the former chief of the Educational Opportunities Section of the Justice Department’s Civil Rights Division under President Obama.

It comes on the heels of U.S. Attorney General Jeff Sessions and Education Secretary Betsy DeVos revoking Obama-era guidance in February that informed schools that discriminating against transgender students, including denying access to the bathroom they think is best for them, amounts to a violation of Title IX.

Last month, the Education Department issued new Title IX rules, informing administration officials that discrimination against transgender kids in schools may in fact amount to a violation of the law, although claims of being denied to restrooms may be dismissed as a complaint.

Adele Kimmel, senior attorney for Public Justice, said in a statement even though a new political party is in control of the White House, the rules under Title IX remain the same.

“Our letter is an important reminder to schools that, regardless of whether the Trump Administration enforces it, Title IX requires that every student — including transgender students—be respected, protected and treated equally under the law,” Kimmel said. “This was true before the Obama Administration issued its guidance on schools’ obligations to protect transgender students. And it remains true, even though the current Administration withdrew that guidance.”

The Obama administration’s assertions that Title IX protected transgender students formed the basis of the U.S. Fourth Circuit Court of Appeals ruling in favor of Gavin Grimm, who as a high school student sued his Virginia school for access to the restroom consistent with his gender identity. However, courts have reached the decision Title IX assures transgender kids bathroom access consistent with their gender identity even without relying on the guidance.

It should be noted that states were an impetus to the withdrawal of the guidance under the Trump administration. Texas Attorney General Ken Paxton during the Obama administration spearheaded a lawsuit filed by 12 states against the guidance, which led to a federal judge enjoining enforcement of it. Litigation led by Nebraska Attorney General Doug Peterson on behalf of 10 more states was also filed against the guidance.

Kimmel told the Blade enforcement of Title IX for trans kids isn’t about states’ willingness to uphold the law, but their obligation to do so.

“Title IX and the U.S. Constitution apply to public schools in every state,” Kimmel said. “Public school districts, colleges, and universities in every state must comply with Title IX and the U.S. Constitution. When they don’t, they may be sued by the injured parties. They may also be sued in an enforcement action by the U.S. Departments of Justice and Education, but that’s unlikely in the Trump administration.”

Kimmel said Public Justice hasn’t yet received any responses from states in response to the joint letter from the organizations.

The Washington Blade has placed a request with the Education Department seeking comment on the demands made to states in the letter.

Chris Minnich, executive director of the Council of Chief States School Officers, is quoted in the Associated Press as saying his organization didn’t oppose Obama’s guidance, but believes disputes on bathroom access for transgender students should be resolved at the local level.

“These decisions need to be made between states and school districts. It’s not so much a single decision that a state can make,” Minnich reportedly said. “Every kid in those schools needs to feel welcome.”

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National

GLSEN hosts Respect Awards with Billy Porter, Peppermint

Annual event aims to ‘inspire a lot of people to get active’

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Billy Porter is among guests at Monday’s Respect Awards in New York.

GLSEN will host its annual Respect Awards April 29 in New York, with guests including Miss Peppermint and Billy Porter. 

Respect Awards director Michael Chavez said that the event will be moving. 

“It will inspire a lot of people to get active and take action in their own communities and see how much more work there is to do, especially with all of the harmful things happening,” he said. 

At the event, they will recognize the Student Advocate of the Year, Sophia T. Annually, GLSEN recognizes a student from around the country who is impacting their community. 

“Sophia is doing incredible work advocating for inclusive sex education that is LGBTQ+ affirming, working with Johns Hopkins University to implement curriculum.” Chavez said. 

Chavez calls the students that attend the Respect Awards the “biggest celebrities” of the evening. 

“It is really important for the adults, both the allies and the queer folks, to hear directly from these queer youth about what it’s like to be in school today as a queer person,” he said.

GLSEN is a queer youth advocacy organization that has been working for more than 30 years to protect LGBTQ youth.

“GLSEN is all hands on deck right now, because our kids are under direct attack and have been for years now,” said actor Wilson Cruz.

Cruz is the chair of GLSEN’s National Board, which works to fundraise and strategize for the organization.

“I think we are fundamental to the education of LGBTQ students in school,” he said. “We advocate for more comprehensive support at the local, national, and federal levels so our students are supported.”

Chavez is one of the students that was impacted by this work. He led his school’s GSA organization and worked with GLSEN throughout his youth. 

Cruz said Chavez is doing what he hopes today’s GLSEN students do in the future, which is pay the work forward. 

“There’s nothing more powerful than people who have experienced the work that GLSEN does and then coming back and allowing us to expand on that work with each generation that comes forward,” he said. 

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Florida

Homeless transgender woman murdered in Miami Beach

Andrea Doria Dos Passos attacked while she slept

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Andrea Dos Passos (Photo courtesy of Equality Florida)

Gregory Fitzgerald Gibert, 53, who was out on probation, is charged with the second-degree murder of 37-year-old Andrea Doria Dos Passos, a transgender Latina woman who was found deceased in front of the Miami Ballet company facility by a security guard this past week.

According to a Miami Beach Police spokesperson the security guard thought Dos Passos was sleeping in the entranceway around 6:45 a.m. on April 23 and when he went to wake her he discovered the blood and her injuries and alerted 911.

She was deceased from massive trauma to her face and head. According to Miami Beach police when video surveillance footage was reviewed, it showed Dos Passos lying down in the entranceway apparently asleep. WFOR reported: In the early morning hours, a man arrived, looked around, and spotted her. Police said the man was dressed in a black shirt, red shorts, and red shoes.

At one point, he walked away, picked up a metal pipe from the ground, and then returned. After looking around, he sat on a bench near Dos Passos. After a while, he got up and repeatedly hit her in the head and face while she was sleeping, according to police.

“The male is then seen standing over her, striking her, and then manipulating her body. The male then walks away and places the pipe inside a nearby trash can (the pipe was found and recovered in the same trash can),” according to the arrest report.

Police noted that in addition to trauma on her face and head, two wooden sticks were lodged in her nostrils and there was a puncture wound in her chest.

Victor Van Gilst, Dos Passos’s stepfather confirmed she was trans and experiencing homelessness. 

“She had no chance to defend herself whatsoever. I don’t know if this was a hate crime since she was transgender or if she had some sort of interaction with this person because he might have been homeless as well. The detective could not say if she was attacked because she was transgender,” said Van Gilst. 

“She has been struggling with mental health issues for a long time, going back to when she was in her early 20s. We did everything we could to help her. My wife is devastated. For her, this is like a nightmare that turned into reality. Andrea moved around a lot and even lived in California for a while. She was sadly homeless. I feel the system let her down. She was a good person,” he added.

Gregory Fitzgerald Gibert booking photo via CBS Miami.

The Miami Police Department arrested Gibert, collected his clothing, noting the red shorts were the same type in the video and had blood on them. Blood was also found on his shoes, according to police. He was taken into custody and charged. 

“The suspect has an extensive criminal record and reportedly was recently released from custody on probation for prior criminal charges. Police apprehended the suspect in the city of Miami and the investigation is currently ongoing. This case is further evidence that individuals need to be held accountable for prior violent crimes for the protection of the public. We offer our sincere condolences to the family and friends of the victim,” Miami Beach Mayor Steve Meiner said in a statement. 

Joe Saunders, senior political director with LGBTQ rights group Equality Florida, told the Miami Herald that “whenever a transgender person is murdered, especially when it is with such brutality, the question should be asked about whether or not this was a hate-motivated crime.”

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Federal Government

HHS reverses Trump-era anti-LGBTQ rule

Section 1557 of the Affordable Care Act now protects LGBTQ people

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U.S. Department of Health and Human Services Secretary Xavier Becerra (Public domain photo)

The U.S. Department of Health and Human Services Office for Civil Rights has issued a final rule on Friday under Section 1557 of the Affordable Care Act advancing protections against discrimination in health care prohibiting discrimination on the basis of race, color, national origin, age, disability, or sex (including pregnancy, sexual orientation, gender identity, and sex characteristics), in covered health programs or activities. 

The updated rule does not force medical professionals to provide certain types of health care, but rather ensures nondiscrimination protections so that providers cannot turn away patients based on individual characteristics such as being lesbian, gay, bisexual, transgender, queer, intersex, or pregnant.

“This rule ensures that people nationwide can access health care free from discrimination,” said HHS Secretary Xavier Becerra. “Standing with communities in need is critical, particularly given increased attacks on women, trans youth, and health care providers. Health care should be a right not dependent on looks, location, love, language, or the type of care someone needs.”

The new rule restores and clarifies important regulatory protections for LGBTQ people and other vulnerable populations under Section 1557, also known as the health care nondiscrimination law, that were previously rescinded by the Trump administration.

“Healthcare is a fundamental human right. The rule released today restores critical regulatory nondiscrimination protections for those who need them most and ensures a legally proper reading of the Affordable Care Act’s healthcare nondiscrimination law,” said Omar Gonzalez-Pagan, counsel and health care strategist for Lambda Legal.

“The Biden administration today reversed the harmful, discriminatory, and unlawful effort by the previous administration to eliminate critical regulatory protections for LGBTQ+ people and other vulnerable populations, such as people with limited English proficiency, by carving them out from the rule and limiting the scope of entities to which the rule applied,” Gonzalez-Pagan added. “The rule released today has reinstated many of these important protections, as well as clarifying the broad, intended scope of the rule to cover all health programs and activities and health insurers receiving federal funds. While we evaluate the new rule in detail, it is important to highlight that this rule will help members of the LGBTQ+ community — especially transgender people, non-English speakers, immigrants, people of color, and people living with disabilities — to access the care they need and deserve, saving lives and making sure healthcare professionals serve patients with essential care no matter who they are.”

In addition to rescinding critical regulatory protections for LGBTQ people, the Trump administration’s rule also limited the remedies available to people who face health disparities, limited access to health care for people with Limited English Proficiency, and dramatically reduced the number of healthcare entities and health plans subject to the rule.

Lambda Legal, along with a broad coalition of LGBTQ advocacy groups, filed a lawsuit challenging the Trump administration rule, Whitman-Walker Clinic v. HHS, and secured a preliminary injunction preventing key aspects of the Trump rule from taking effect.

These included the elimination of regulatory protections for LGBTQ people and the unlawful expansion of religious exemptions, which the new rule corrects. The preliminary injunction in Whitman-Walker Clinic v. HHS remains in place. Any next steps in the case will be determined at a later time, after a fulsome review of the new rule.

GLAAD President Sarah Kate Ellis released the following statement in response to the news:

“The Biden administration’s updates to rules regarding Section 1557 of the ACA will ensure that no one who is LGBTQI or pregnant can face discrimination in accessing essential health care. This reversal of Trump-era discriminatory rules that sought to single out Americans based on who they are and make it difficult or impossible for them to access necessary medical care will have a direct, positive impact on the day to day lives of millions of people. Today’s move marks the 334th action from the Biden-Harris White House in support of LGBTQ people. Health care is a human right that should be accessible to all Americans equally without unfair and discriminatory restrictions. LGBTQ Americans are grateful for this step forward to combat discrimination in health care so no one is barred from lifesaving treatment.”

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