Analysis: Administration’s push for transgender rights likely to succeed, perhaps with a boost from Scalia

The Obama administration’s push to apply 1960s and 1970s equal-rights laws to the transgender community is likely to win favor in federal courts and may even get a surprising assist from the late conservative Supreme Court Justice Antonin Scalia.

Transgender rights has emerged as the new frontier in civil rights law and the latest battleground for the nation’s culture wars.

On Friday, the Obama administration’s Education and Justice departments sent a letter to public school officials nationwide, warning them that schools must provide an environment free of discrimination and treat students consistent with their gender identity, even if that’s different from the sex assigned at birth.

Earlier this week, the Justice Department and North Carolina’s Gov. Pat McCrory filed dueling lawsuits against each other, asking a judge to decide whether North Carolina House Bill 2, the so-called bathroom bill, violates federal civil rights laws. It says public bathrooms and changing facilities may be used only “by individuals based on their biological sex [as] stated on a person’s birth certificate.”

Separately Friday, the Health and Human Services Department announced regulations forbidding sex discrimination in healthcare and health coverage, covering “pregnancy, gender identity and sex stereotyping.”

At issue in all these cases is a deceptively simple question: What is discrimination based on “sex”?

Neither Congress nor the Supreme Court has weighed in directly to decide whether federal law forbids discrimination against transgender students or adults. But Obama administration officials in recent years have put employers and schools on notice that they believe existing law protects transgender people.

To bolster their argument, attorneys for the Obama administration argue that the ban on sex discrimination has evolved since the 1960s, when it was seen chiefly as forbidding employers from denying women the right to get jobs that had been reserved for men. By the 1970s, the law had been expanded to forbid sexual harassment of women in the workplace.

By 1989, the Supreme Court, in Price Waterhouse vs. Hopkins, upheld a sex discrimination claim brought by a woman who was denied partnership at an accounting firm because some male colleagues thought she was gruff and aggressive, not “feminine,” in her attire.

Nearly a decade later, Justice Scalia spoke for a unanimous court in reviving a sex discrimination suit brought by a man who had worked on an oil rig off Louisiana and complained he was harassed, bullied and threatened with rape by the other men in showers. Scalia said this was clearly discrimination based on sex, even though it involved only men.

“Male-on-male sexual harassment was assuredly not the principal evil Congress was concerned with when it enacted” the 1964 Civil Rights Act, Scalia wrote in Oncale vs. Sundowner Offshore Services. “But statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils,” and the words of the law can be easily read to forbid “sexual harassment of any kind,” he said.

The administration’s lawyers cited both the Hopkins and Oncale decisions in Friday’s letter to school officials. Together, they say the decisions stand for the proposition that sex-related mistreatment is broadly prohibited by civil rights laws.

Atty. Gen. Loretta Lynch, in announcing Monday that the federal government would take North Carolina to court, condemned the law as “state-sponsored discrimination.” The Obama administration bases its view on the 1964 Civil Rights Act, which protects employees from discrimination because of sex, and Title IX, adopted by Congress in 1972, which says schools receiving federal money may not discriminate “on the basis of sex.”

Last month, the administration won a significant victory in the 4th Circuit Court of Appeals. In a 2-1 decision, judges agreed with the administration and ruled for Gavin Grimm, a transgender boy from Gloucester, Va., who was told he could no longer use the boys’ bathroom.

Walter Dellinger, a North Carolinian and former solicitor general in the Clinton administration, predicted the state will lose its battle with the Justice Department.

“The courts have interpreted the ban on sex discrimination very broadly. I’m reasonably confident the 4th Circuit will strike down HB 2 because it reflects hostility to transgender people,” he said.

But North Carolina’s Republican governor called the administration’s legal push a “massive executive branch overreach.” In his lawsuit, McCrory said federal officials should not be allowed to foist a “radical interpretation” of the civil rights laws on the states.

“Schools have a duty to protect the privacy and safety of all students,” said Jeremy Tedesco, a lawyer for Alliance Defending Freedom in Arizona, which represents the Gloucester school district. “It’s common sense that boys shouldn’t be in girls’ locker rooms. Physiological differences require distinctive and separate spaces.”

Sen. Lamar Alexander (R-Tenn.), chairman of the Senate Education Committee and his state’s former governor, said, “This is the kind of issue that parents, schools boards, communities, students and teachers and should be allowed to work out in a practical way. ... The guidance issued by the departments does not amount to federal law and should not be treated as such.”

Ed Whelan, a conservative legal analyst and a former Scalia law clerk, called Friday’s announcement an “absurd misreading of Title IX.”

But Obama administration aides contend that the directive is meant to clear up confusion and comes in response to a request from school principals seeking legal and practical guidance.

White House Press Secretary Josh Earnest questioned how state officials would enforce a rule requiring people to use the bathroom assigned to the gender on one’s birth certificate. He singled out Texas Atty. Gen. Ken Paxton, who has challenged the administration’s action.

“Is the Texas attorney general suggesting somehow that it would be practical to station a law enforcement officer outside of every public bathroom in an educational facility and check people’s birth certificates on the way in?” Earnest said Friday. “It certainly sounds like a government intrusion to me.”

It’s also unclear whether the issue of transgender students poses a real problem in schools.

In 2005, the Los Angeles Unified School District adopted a policy to treat transgender students consistent with their identity. And in 2013, the California Legislature adopted a measure to protect transgender students from discrimination.

“It’s been a nonissue,” said Dr. Judy Chiasson, program coordinator for the LAUSD’s Office of Human Relations. “ I get calls from the media on occasion, but we haven’t had problems in the schools.”

She was one of several school officials who filed a friend-of-the-court brief in the Virginia case. There, the high school principal had allowed Gavin to use the boys’ restroom, but he was forced to change after community activists persuaded the school board to adopt a new policy. That in turn led to the lawsuit and the 4th Circuit ruling.

“Our experience has been that the fears of the adults are rarely played out,” Chiasson advised the court. “The students are very affirming and respectful of their classmates.”

Times staff writer Christi Parsons contributed to this report.

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