The Trump Administration Is Trying to Erase Trans People, but the Law Clearly Protects Them
Over the weekend, revealed that officials within the Trump administration are pushing for a definition of the term “sex” in federal civil rights laws that would eliminate non-discrimination protections for transgender people. Transgender people and their families understandably panicked at that news.
The reality, though, is that transgender people are already protected from discrimination in many contexts under federal law. And we are already fighting in court alongside transgender plaintiffs to keep those protections from being taken away.
Federal civil rights laws bar sex discrimination by employers, schools, landlords, and health care providers, through laws such as Title VII, Title IX, and the Affordable Care Act. Federal courts have consistently ruled that the protection against sex discrimination covers discrimination against transgender people, in contexts ranging from employment to to access to health care. Recognizing that anti-trans discrimination is a form of sex discrimination makes sense, given that you can’t describe what it means to be transgender without talking about the person’s sex.
The idea that bans on sex discrimination cover transgender people is not new and it’s not something the Obama administration made up. State courts have ruled this way going back to the 1970s, and federal courts have done so since the 1990s. Today, many federal appeals courts agree that trans people are protected from discrimination under statutes barring sex discrimination, and a wide range of federal agencies has issued rulings or regulations protecting transgender people through bans on sex discrimination. That includes the , the , and the .
The Trump administration is trying hard to take away these existing protections and make anti-trans discrimination legal in every context it can find. They are arguing in court that civil rights laws don’t cover transgender people and they have revoked administrative that used to make clear to schools and prisons that transgender people are protected under current law. They have also made clear they will propose new regulations that would leave transgender people without recourse under federal law for discrimination they face in many contexts.
If successful, Trump’s actions would harm millions of people all across America.
Aimee Stephens, whom the ACLU represents, is one of them. She worked as a funeral director and embalmer for six years at a funeral home in Detroit. Aimee knew she was a girl from an early age. When she came out to her boss and co-workers as the woman she is, her boss fired her for being transgender. Aimee and her wife, Donna, have had to sell off their possessions just to stay afloat. This spring, a federal appeals court ruled that what happened to Aimee was not only wrong, it was unlawful sex discrimination. The funeral home has asked the Supreme Court to reverse the case and leave Aimee with no job and no remedy for the discrimination she experienced.
On Wednesday, the Department of Justice will file a brief in the case about whether it believes the federal appeals court was right to rule for Aimee. Its position won’t be a surprise: Attorney General Sessions issued a in September 2017 declaring that the very federal law Aimee sued under — Title VII of the Civil Rights Act of 1964 — doesn’t protect transgender people from discrimination.
Aidan DeStefano, another ACLU client, would also face harm if the Trump administration succeeded in undoing legal protections for transgender people. Aidan, who is transgender, used to attend Boyertown Area Senior High School in central Pennsylvania. His school district allows boys like Aidan to use the boys’ restrooms, participate in boys’ sports teams, and use the boys’ locker rooms. The school district adopted that policy in large part because a from 2016 from the U.S. Department of Education made clear that Title IX, which bars sex discrimination by schools, covers anti-trans discrimination.
But in early 2017, the Trump administration . Yet when anti-trans activists sued Aidan’s school over its policy allowing transgender students to use the restroom, the courts rejected their challenge and upheld the school’s inclusive policy. The people behind that lawsuit have announced that they will ask the Supreme Court to take up the case.
If the Trump administration had its way, Shannon Andrews would also lose the protections of civil rights laws. Shannon supervises a cancer research lab at the University of Wisconsin. Like other state employees, she gets health care insurance through the state. Shannon faced state rules that specifically excluded coverage for hormone therapy and surgery relating to gender transition, even though her doctors say that care is medically necessary for her.
Last month, a federal judge ruled that the state violated federal law when it barred Shannon from receiving this health care because she’s transgender. What’s more, a jury of Shannon’s peers recognized that the state’s treatment of her was wrong and awarded her damages for the discrimination she faced.
In this context as well, the Trump administration is working to change the federal government’s official interpretation of one of the laws that Shannon relied on — a portion of Obamacare that bars discrimination based on sex — in an effort to allow discrimination against transgender people.
The good news here is that this administration doesn’t get the last word on trans people’s rights. Many courageous transgender people are already in court, fighting to maintain these essential civil rights protections. They’ll continue to do so, and we’ll be by their sides, as long as it takes to maintain their basic rights.
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Press ReleaseDec 2024
LGBTQ Rights
President Biden Must Veto Defense Bill Attacking Military Families with Transgender YouthPresident Biden Must Veto Defense Bill Attacking Military Families with Transgender Youth
WASHINGTON — The U.S. Senate today passed a version of the National Defense Authorization Act that would ban coverage for gender-affirming care for transgender youth whose parents are active-duty military personnel. The American Civil Liberties Union is opposing final passage of the defense bill over the inclusion of this health care ban and calling on President Joe Biden to veto the bill. Section 708 of the NDAA would prohibit insurance coverage for “medical interventions for the treatment of gender dysphoria” such as hormone therapy and puberty-suppressant medications, which Speaker Mike Johnson says would “permanently ban transgender medical treatment for minors.” The same treatments would be covered by TRICARE for any medical purpose other than treating gender dysphoria, the clinical diagnosis for the psychological distress experienced by transgender people related to their gender identity. “By passing this bill, the House and Senate are forcing thousands of active-duty service members to choose between their careers in the military and the future of their transgender children,” said Mike Zamore, national director of policy & government affairs at the ACLU. “This unconscionable and unjustifiable attack on those families stands in direct contrast to President Joe Biden’s legacy of defending the civil rights of transgender Americans — including when few in his own party showed the courage to do so. President Biden should cement his legacy by vetoing this bill and sending it back to Congress to pass without Speaker Johnson’s last minute health care ban for servicemembers’ kids.” If signed by President Biden, this health care ban would be the first new anti-LGBTQ provision enacted by Congress and signed into law by the president since the enactment of the military’s since-repealed “Don’t Ask, Don’t Tell” policy for LGBTQ servicemembers and the since-repealed federal law barring recognition of same-sex marriages known as the Defense of Marriage Act. It is unknown how many transgender youth are currently enrolled in TRICARE or how many of those enrolled are currently receiving coverage for gender-affirming care. In one 2022 analysis, 2,500 minor patients sought care for gender dysphoria through TRICARE Prime insurance at military or civilian treatment facilities in 2017, and 900 received puberty suppressants or gender-affirming hormones. Earlier this month, the Supreme Court heard oral arguments in a landmark case brought by the ACLU, the ACLU of Tennessee, Lambda Legal, and Akin Gump on behalf of three families and a medical provider challenging a Tennessee ban on gender-affirming hormonal therapies for transgender youth on the grounds the ban violates the Equal Protection Clause of the U.S. Constitution. -
Press ReleaseDec 2024
LGBTQ Rights
Montana Court Blocks State From Refusing to Correct Sex Markers on Transgender People's Birth Certificates and Driver's LicensesMontana Court Blocks State From Refusing to Correct Sex Markers on Transgender People's Birth Certificates and Driver's Licenses
HELENA, Mont. – A Montana court has granted a preliminary injunction preventing the state of Montana from enforcing policies that bar transgender people from obtaining accurate sex designations on their birth certificates and driver’s licenses. After a prior restriction on amendments of birth certificates was struck down by the courts, in early 2024 the state of Montana enacted a new rule that categorically bars transgender Montanans from correcting the sex designation on their birth certificates. Around the same time, the Montana Department of Justice adopted a policy similarly restricting amendment of driver’s licenses. The plaintiffs challenged these policies in state district court, arguing that they violate various constitutional provisions, including the right to equal protection of the law. In a recent Montana Supreme Court decision, two justices concluded that discrimination on the basis of transgender status – as the state is engaging in here – is a form of sex discrimination that violates the Montana Constitution’s equal protection clause. The plaintiffs, two transgender women, are represented by the American Civil Liberties Union, the ACLU of Montana, and Nixon Peabody LLP. Plaintiff Jessica Kalarchik, a veteran who served in the United States Army for 31 years, said: “After finally being able to live my life openly as the woman I know myself to be, I am frustrated that my birth state, Montana, wants me to carry around a birth certificate that incorrectly lists my sex as male. I live my life openly as a woman, I am treated as a woman in my daily life, and there is no reason I should be forced to carry a birth certificate that incorrectly identifies me as male. Fortunately, the court agrees that this ridiculous policy should not be in effect.” “Once again the State of Montana chose to adopt a draconian policy that is clearly intended to marginalize transgender Montanans, only for that discriminatory action to be blocked by the courts,” said Akilah Deernose, executive director for the ACLU of Montana. “Here in Montana we treasure our right to privacy and to live our lives free from governmental intrusion. The State of Montana clearly has not learned any lessons from the past few years, where courts have repeatedly struck down unconstitutional laws targeting transgender Montanans.” “Forcing anyone to carry documents that contradict their identity unjustly violates their rights to privacy, equal treatment, and not being compelled to convey a government message about their sex that they disagree with,” said Malita Picasso, staff attorney for the ACLU’s LGBTQ & HIV Project. “Such a policy marks transgender people for further mistreatment and discrimination, essentially requiring them to carry papers that out them as transgender any time they need to provide identity documents. Fortunately, the court has refused to allow the state of Montana to subvert the freedom of transgender Montanans to control their own identity as this case goes forward.” In granting the plaintiffs’ motion for a preliminary injunction, the court held, “[i]f the challenged state actions discriminate against transgender individuals on the basis of their transgender status, they also necessarily discriminate the basis of sex.” The state has the option of appealing the district court’s ruling to the Montana Supreme Court, but the underlying case will proceed in district court. A trial has not yet been scheduled. -
FloridaDec 2024
LGBTQ Rights
Keohane v. DixonKeohane v. Dixon
On September 30, 2024, the Florida Department of Corrections rescinded its policy regarding treatment of gender dysphoria, which allowed for hormone therapy when deemed medically necessary, as well as access to clothing and grooming standards that accord with one’s gender identity. Under this new policy, grooming and clothing accommodations have been stripped away, and hormone therapy is not permitted unless an exception is deemed constitutionally required. The ACLU brought a class action challenging the policy. -
IdahoDec 2024
LGBTQ Rights
Robinson v. LabradorRobinson v. Labrador
Two incarcerated transgender women have sued the state of Idaho alleging that HB 688, a 2024 law barring state funding for gender-affirming medical care for transgender people, denies them access to the health care their doctors have prescribed for them and is a violation of their Eighth Amendment right to be free from cruel and unusual punishment. They represent a class of all incarcerated folks within the state of Idaho who face the loss of hormone therapy due to HB 668.