Transgender bathroom access laws in the United States, 2015-2016

Some states and municipalities have adopted provisions addressing the use of restrooms by transgender people, with some permitting transgender individuals to use public restrooms that match their gender identities and others prohibiting it. Government actions in a variety of states and localities, including North Carolina and Houston, Texas, brought this issue to the fore beginning in 2015 and 2016.

This article addresses federal, state, and local government actions relating to transgender bathroom access laws in 2016. For general information about this topic, see this article.

Federal

• Federal issues:
• May 2016 federal rule
• The Equality Act
• Congressional support

May 2016 federal rule

On Friday, May 13, 2016, the U.S. Departments of Education and Justice sent a letter to schools across the country explaining civil rights protections for transgender students and best practices for supporting transgender students. The letter explained, “As a condition of receiving Federal funds, a school agrees that it will not exclude, separate, deny benefits to, or otherwise treat differently on the basis of sex any person in its educational programs or activities unless expressly authorized to do so under Title IX or its implementing regulations. The Departments treat a student’s gender identity as the student’s sex for purposes of Title IX and its implementing regulations. This means that a school must not treat a transgender student differently from the way it treats other students of the same gender identity.”

Trump administration rescinds rule

In a joint letter on February 22, 2017, officials from the Departments of Justice and Education notified schools across the nation that the guidance issued by the Obama administration establishing protections for transgender students to use public school restrooms corresponding with their gender identity was rescinded. At issue, according to the letter, was whether such an allowance was legally required under Title IX of the Education Amendments of 1972. "This interpretation has given rise to significant litigation regarding school restrooms and locker rooms. ... In addition, the Departments believe that, in this context, there must be due regard for the primary role of the States and local school districts in establishing educational policy," the officials wrote.

Secretary of Education Betsy DeVos released a statement emphasizing that schools should be "free of discrimination, bullying and harassment." Transgender bathroom access, however, was "an issue best solved at the state and local level," DeVos wrote.

The Equality Act

"Sen. Merkley on Equality Act," February 5, 2016

On July 23, 2015, Senator Jeff Merkley (D-Ore.) and Rep. David Cicilline (D-R.I.) introduced S 1858/ HR 3185, The Equality Act. The legislation proposed amending the Civil Rights Act of 1964 to include protections for members of the LGBT community. The goal of the legislation was to "prohibit discrimination on the basis of sex, gender identity, and sexual orientation."

The bill would require that transgender individuals be given equal access to public accommodations and facilities, including bathrooms. The legislation did not specifically explain whether or not transgender individuals would be allowed to use public bathrooms that match their gender identities if it become law. Currently, federal law does not address transgender access to public bathrooms. As of August 2017, the bill had not been voted on in either chamber.

In the Senate, 39 senators co-sponsored the bill, including 36 Democrats; Independent Senators Bernie Sanders (Vt.) and Angus King (Maine); and Republican Senator Mark Kirk (Ill.)

In the House, 174 representatives co-sponsored the bill, including 173 Democrats and one Republican, Rep. Robert Dold (Ill.)

The Obama administration endorsed the legislation on November 10, 2015. White House press secretary Josh Earnest said, "[I]t is now clear that the administration strongly supports the Equality Act. That bill is historic legislation that would advance the cause of equality for millions of Americans. We look forward to working with Congress to ensure that the legislative process produces a result that balances both the bedrock principles of civil rights ... with the religious liberty that we hold dear in this country."

LGBT concerns
Some LGBT activists expressed concern about amending the 1964 Civil Rights Act. They argued that it would open the act to amendments that could undermine the existing legislation. According to the Huffington Post, "As far back as 15 years ago, when activists and progressive Democrats like former New Jersey senator, Bill Bradley, suggested amending the Civil Rights Act to include gays, openly gay Congressman Barney Frank expressed fierce opposition, calling it 'very controversial.'"

In response to the concerns, Merkley said, "We looked at this question very, very carefully. The first point that we considered was the application of legal precedent. And by utilizing the Civil Rights Act, there is a whole body of law that has been adjudicated and that helps understand exactly what terms mean and what the results would be. So, that's very valuable. The second thing we looked at was really about the frame of taking on discrimination in a comprehensive fashion. Does it make sense to have over here in one box, if you will, gender and race and ethnicity, and then put in a separate box LGBT issues? And it just didn't feel right to have that separation when essentially we're talking about the same fundamental issues in all of these areas, of housing and accommodations and financial transactions and so forth."

Merkley also specifically addressed whether the bill could undermine the Civil Rights Act. He said, "There are already bills out there that seek to attack the '64 Civil Rights Act, and they can be done on any amendment on any bill. We don't have a restriction to a single topic here in the U.S. Senate or House. Amendments don't have to fit the general title of the bill. And so, those attacks are going to come regardless. If you do a separate bill that's just as much of an opportunity to change the Civil Rights Act as a bill that is [attached to] the Civil Rights Act itself. So after talking to many different individuals about this, we decided that it just wasn't any greater risk in utilizing the Civil Rights Act, and there were fundamental reasons of law and, really, of fairness, to utilize it ... Over 25 members of the Congressional Black Caucus are original co-sponsors of this bill and I think that does help address that point powerfully."

Religious liberty
Conservative critics such as Andrew T. Walker worried that the bill would infringe on the religious liberty of those who "do not accept a sexually permissive understanding of human nature that denies sexual complementarity." Writing for the Witherspoon Institute, a 501(c)3 "that seeks to enhance the public understanding of the moral foundations of free societies," Walker argued, "If enacted into law, the Equality Act would further erode religious liberty, transform public opinion on sexuality, and harm the public perception of those who believe in traditional or biblical sexual morality." Walker also wrote that "by elevating sexual orientation and gender identity to the level of race, the law’s effect would functionally equate those who don't agree with it with racists and label them perpetrators of irrational bigotry. Indeed, to favor the Equality Act is to oppose and actively stigmatize the moral convictions that millions of Americans adhere to with abiding sincerity and deep religious precedent."

OSHA guidelines for bathrooms
In June 2015, the Occupational Safety and Health Administration released a "Guide to Restroom Access for Transgender Workers," which "provides guidance to employers on best practices regarding restroom access for transgender workers." Assistant Secretary of Labor for the Occupational Safety and Health Administration Dr. David Michaels said, "The core principle is that all employees, including transgender employees, should have access to restrooms that correspond to their gender identity. OSHA's goal is to assure that employers provide a safe and healthful working environment for all employees."

According to The Human Rights Campaign, "No federal, state or municipal laws or regulations specifically pertaining to gender identity require employers to utilize one type of bathroom over another, or to construct new facilities to accommodate transgender individuals."

Congressional support

Congressional support for The Equality Act
Name	State/ District	Date	Comments
Sen. Tammy Baldwin (D)	Wisconsin	July 23, 2015	“I believe America is ready to take the next steps forward in the march for fairness, equality, and opportunity for every American. A growing number of Americans believe their LGBT family members, friends, and neighbors deserve to be treated like everyone else in the United States. Yet today in America, in 31 states, LGBT Americans live without fully-inclusive non-discrimination laws. In a majority of American states, LGBT Americans do not have the freedom of full equality. It’s now time to take bold legislative action and pass on to the next generation an America that is more equal, not less. Every American deserves the freedom and opportunity to dream the same dreams, chase the same ambitions, and have the same shot at success. The introduction of the Equality Act marks an important and historic step forward for our country.”
Sen. Cory Booker (D)	New Jersey	July 23, 2015	“Brave men and women in every generation throughout America’s history have mustered the conviction to fight for freedom and equality against all odds - from abolitionists and suffragettes to civil rights activists. With each fight for justice, ordinary people have challenged our nation to become a more perfect union. The Equality Act builds on the work of those who have struggled and fought for LGBT rights by extending basic civil rights protections that must be guaranteed to every American. Together, I know we can achieve justice for those who endure discrimination due to their gender identity or sexual orientation.”
Rep. David Cicilline (D)	Rhode Island's 1st Congressional District	July 23, 2015	“In most states, you can get married on Saturday, post your wedding photos to Facebook on Sunday, and then get fired on Monday just because of who you are. This is completely wrong. Fairness and equality are core American values. No American citizen should ever have to live their lives in fear of discrimination. I am introducing the Equality Act today with 157 House co-sponsors in order to ensure that LGBT Americans have the same rights and protections afforded to all other Americans.”
Rep. Robert Dold (R)	Illinois' 10th Congressional District	January 15, 2016	"Illinois has a long and proud history of fighting for equal rights, and I am proud to continue this tradition by supporting the Equality Act. Engraved on the front of the Supreme Court is the phrase 'equal justice under the law,' but as long as any Americans can be legally discriminated against, there is not equal justice in this country. Congress must act to ensure that all Americans, including the LGBT community, are protected equally from discrimination under federal law, just as they already are in my home state of Illinois." Dold added that while the bill is "not perfect in its current form, it marks an important first step in the process of crafting a bipartisan bill that ensures equal rights for all Americans while also fully protecting the religious freedoms our Constitution guarantees."
Sen. Dick Durbin (D)	Illinois	July 23, 2015	“One month ago, the Supreme Court issued a historic decision affirming that same-sex couples across the nation have the right to marry whom they love. Today, the Equality Act continues the important work of expanding basic protections against discrimination to LGBT individuals. Now is our chance to be on the right side of history and ensure no American faces discrimination based on their sexual orientation or gender identity.”
Rep. Steny Hoyer (D)	Maryland's 5th Congressional District	July 23, 2015	“No one should be faced with the threat of being fired or discrimination in the workplace simply because of sexual orientation, gender identity, or gender expression. Neither should anyone be denied housing, health care, educational opportunities, or other services for the same reasons. America was founded on the principle that all are created equal and ought to have an equal opportunity to pursue the American Dream. After the historic marriage ruling last month, the Equality Act is the next step in securing the full civil rights of LGBT individuals and their families, and I hope the Congress will take action on this bill without delay.”
Sen. Mark Kirk (R)	Illinois	January 19, 2016	"Discrimination on the basis of being gay is against the law in Illinois and should be against the law nationwide."
Sen. Patrick Leahy (D)	Vermont	July 23, 2015	“While LGBT Americans are now able to marry the person they love, they continue to experience discrimination in many other aspects of their lives. Achieving full equality means that LGBT individuals should be able to provide security for their families without fear that they will be fired from their jobs or denied housing. As far as we have come, we still have a lot farther to go in our march toward a more perfect union. I am proud to join in introducing the Equality Act, and I hope that all Senators support this effort to ensure equality for all Americans."
Rep. John Lewis (D)	Georgia's 5th Congressional District	July 23, 2015	“This legislation is what justice requires, and like the recent Supreme Court decision, it is long overdue. No longer should America turn her back on our lesbian, gay, bisexual and transgendered brothers and sisters. We must come together to create one nation and one people, a country free of hate, free of fear, and that respects dignity and worth of every human being.”
Sen. Jeff Merkley (D)	Oregon	July 23, 2015	“The time has come for us as a nation to be bolder and better in ensuring full rights for the LGBT community. Every person deserves to live free from fear of discrimination, regardless of who they are or whom they love. Enacting the Equality Act will bring us another significant step forward in our nation’s long march towards inclusion and equality. It will extend the full promise of America to every American.”
Sen. Patty Murray (D)	Washington	July 23, 2015	“This year, we’ve seen major victories for the LGBT community, but even as we take strides toward equality, we must remember that there is more work to do,” said Senator Patty Murray. “In far too many places in our country, LGBT Americans and women remain vulnerable to discrimination simply because of who they are or who they love. I am proud to support the Equality Act, and I look forward to building on the momentum we’ve seen recently and deliver on our nation’s promise to equality for all.”
Rep. Nancy Pelosi (D)	California's 12th Congressional District	July 23, 2015	“This bill is about justice. It is about freedom. The Equality Act is about ensuring that every American – no matter who they love, no matter who they are – can enjoy the full blessings of American democracy.”
Sen. Harry Reid (D)	Nevada	July 23, 2015	“Our country has made tremendous strides in ensuring equal rights for all but there is much more work to be done. The Equality Act of 2015 gives LGBT Americans the equality they deserve and protects them against discrimination in employment, housing, public accommodations and other areas of law where discrimination is now openly embraced. This commonsense legislation is long overdue. I stand with my colleagues in support of these vital protections for members of the LGBT community.”
Sen. Chuck Schumer (D)	New York	July 23, 2015	“After years under a legal cloud, marriage equality is finally the law of the land. Unfortunately, tucked away in the shadows of our laws, discrimination is still allowed to flourish. The Equality Act will shine a light on that injustice, and continue our commitment to ensuring that all Americans have the same rights, no matter who they love. I applaud Senators Merkley, Baldwin and Booker as well as Rep. Cicilline and Lewis for their leadership on this issue and this historic legislation.”

State

• State issues:
• Kansas
• North Carolina
• South Dakota
• Tennessee
• Lawsuits against federal government

Kansas

The Kansas State Board of Education voted unanimously in June 2016 not to comply with the Justice Department directive that students be allowed to use bathrooms based on their gender identity instead of biological gender. Instead, they would continue to allow school districts to decide on their own how to deal with the issue. At the time, it was not clear how this might affect federal education funding in the state. The board issued a statement saying, "The recent directive from the civil rights offices of the United States Department of Education and the U.S. Department of Justice regarding the treatment of transgender students removes the local control needed to effectively address this sensitive issue." Kansas was one of 23 Republican trifectas in the country and at the time was under scrutiny from the Kansas Supreme Court regarding inequities in state school funding.

North Carolina

In March 2016, the General Assembly of North Carolina blocked a local ordinance in Charlotte, North Carolina, that would have allowed transgender people to use the bathroom of their choosing based on the gender with which they identify.

Before the local LGBT ordinance could go into effect on April 1, 2016, legislators in the General Assembly of North Carolina called a one-day special session on March 23 to address the issue. The ordinance would have prevented businesses from discriminating against LGBT customers. It also included a provision that would have allowed transgender people to use the bathroom that aligns with their gender identity. During the special session, the Senate and House passed House Bill 2, which overruled the local ordinance and prevented local governments from setting up their own anti-discrimination rules, including laws against LGBT employment discrimination. The House passed the bill by a vote of 82-26, and the Senate passed the bill by a 32-0 vote. Eleven Democrats broke from their party in the House to vote in favor of the legislation, while 11 Senate Democrats walked out in protest before the vote. Then-Governor Pat McCrory (R) signed the bill into law on March 23.

On May 4, 2016, the U.S. Department of Justice sent a letter to McCrory and the state's public universities stating that HB 2 was a violation of Title VII of the Civil Rights Act of 1964. Title VII "prohibits an employer from discriminating against an individual on the basis of sex and from otherwise resisting the full enjoyment of Title VII rights." The letter also said that the law violated Title IX of the Education Amendments Act of 1972, which bars discrimination in education based on sex. The state government—a Republican trifecta—and the universities were given a deadline of May 9 to "remedy these violations." The letter also stated that if they did not comply, federal funding to state universities could be affected. On May 5, 2016, North Carolina House Speaker Tim Moore said they did not plan on meeting the deadline, which they considered bullying by the Obama administration.

On May 9, 2016, the Justice Department filed a lawsuit against North Carolina, challenging HB 2 as discriminatory toward transgender people and in violation of federal civil rights statutes. On March 30, 2017, Governor Roy Cooper (D) signed into law a bill repealing HB 2 and replacing it with a new measure, which maintained provisions barring localities from enacting their own anti-discrimination ordinances until 2020. On April 14, 2017, the Justice Department dropped its lawsuit against the state.

South Dakota

On March 1, 2016, South Dakota Governor Dennis Daugaard (R) vetoed a bill passed by the Republican-led legislature in February 2016 that would have required transgender students to use the bathrooms that match their "chromosomes and anatomy" at birth. Daugaard had reportedly supported the bill initially but ultimately rejected it. "If and when these rare situations arise, I believe local school officials are best positioned to address them," he wrote in a letter on the matter. The bill was criticized by the American Civil Liberties Union and other LGBT advocacy groups.

The bill was sponsored by State Rep. Fred Deutsch (R)—who had pursued similar legislation in the past—and would have mandated alternate and reasonable accommodations for transgender students. Supporters stated that the bill was a response to the Obama administration's recent re-interpretation of Title IX, a federal anti-discrimination law, to include discrimination against transgenders. Title IX is part of the Education Amendments of 1972 and prohibits educational discrimination based on race, sex, and disability. "It was an honest, sincere effort to protect the bodily privacy of our children," Deutsch stated. He later added that he would encourage fellow legislators not to vote to override the veto, saying, "I think the national focus on South Dakota should be our positive business environment, strong labor market and the excellent work our schools do."

The South Dakota House of Representatives failed to override the veto on March 3. Deutsch was quoted afterwards as stating that he would consider pursuing legislation similar to HB 2 in North Carolina, which prohibited local governments from passing anti-discrimination laws.

Tennessee

ACLU files complaint with OCR over district's transgender bathroom policy

See also: Transgender bathroom access laws in the United States

The American Civil Liberties Union of Tennessee (ACLU-TN) filed a complaint against Sumner County Schools with the U.S. Department of Education's Office of Civil Rights (OCR) in May 2016. The OCR did not act on the complaint prior to the election. The complaint regarded the school district's policy of requiring transgender students to use the bathroom and locker room corresponding with their birth gender. The complaint was registered on behalf of a high school freshman and said that the policy was in violation of the requirements of federal anti-discrimination law.

Under the district's policy for the 2015-2016 school year, the student had to use the boys' bathroom, the faculty bathroom, or a special needs bathroom. Through the year, the student tried to avoid using the bathroom altogether, according to the complaint. “No student should have to endure the stigma and marginalization of being segregated from the rest of the student body," said Abby R. Rubenfeld, an ACLU-TN cooperating attorney.

The student's family said they sought to work out new accommodations with the district throughout the 2015-2016 school year, but asked for help from the ACLU-TN after those attemps were unsuccessful. Two months prior to filing the complaint, the ACLU-TN requested a meeting with district officials to discuss new arrangements for the student. After district officials said they were unwilling to change the restroom policy, the ACLU-TN filed the complaint with the OCR. Tom Castelli, legal director of the ACLU-TN, said the family filed a complaint rather than seeking legal action because they were "not looking to get a payday."

Todd Presnell, an attorney for the school district, said district officials believed the gender guidelines followed federal law and met "the needs of transgender students while simultaneously maintaining the privacy rights of all students, regardless of gender or gender identity." In response to the complaint, district officials released the following statement.

“	The Sumner County Board of Education strives to provide all students with a quality education in a safe environment that is respectful to each of its 29,000 students. In this spirit, the school system expressly prohibits harassment and bullying of any student, including transgender students, and also devised a set of guidelines to meet the needs of transgender students while respecting the interests of all students. Under these guidelines, school administrators meet with transgender students’ parents to discuss the student’s needs. Our schools allow transgender students to follow the dress code corresponding to their gender identity, address them with the name and pronoun corresponding to their gender identity, and provide alternative physical-education options. While transgender students must use the general restroom and locker room facilities corresponding to their birth gender, our schools provide alternative, private, unisex restrooms and changing facilities. We are aware of and will take under consideration the guidelines recently issued by the Justice and Education Departments. We believe that our guidelines, after due consideration, comply with federal law and meet the needs of transgender students while simultaneously maintaining the privacy rights of all students, regardless of gender or gender identity.	”
—Sumner County Schools (May 19, 2016)

After the complaint was filed, Congresswoman Diane Black (R-6) released the following statement.

Rep. Diane Black (R-6)

“	Washington liberals’ campaign to compromise the safety and privacy of our students in the name of hyper-political correctness has now hit our backyard,” Congressman Black said. “These days, a complaint by the ACLU is a sure sign you’ve done something right. From the organization’s work to silence expressions of faith in our schools to their attacks on laudable organizations like Boy Scouts of America, they’ve lost all credibility with Tennesseans and they know it. Nonetheless, if the ACLU wants to pick a fight with our Sumner County educators, then they’ll have to pick a fight with me as well. I sent my children to Sumner County public schools. I know our Director of Schools and the Chairman of the Board of Education. I have the utmost confidence in their ability to offer accommodations for transgender students while maintaining reasonable policies that protect the privacy and security of the student population as a whole and I stand with them in the face of this blatantly political complaint.	”
—Diane Black (R-6)

Jennifer Donnals, press secretary for Tennessee Gov. Bill Haslam (R), also released a statement.

“	The governor is aware of the complaint to the U.S. Department of Education. We will do everything we can to assist Sumner County if there is an investigation by OCR because the governor firmly believes decisions on sensitive issues such as these should continue to be made at the local level based on the unique needs of students, families, schools and districts while working closely with the local school board counsel.	”
—Jennifer Donnals (May 19, 2016)

The complaint was filed days after a guidance letter was published by the federal government detailing that transgender students should be able to use the bathroom of their chosen gender. The letter said that not allowing students to do so could be a violation of Title IX.

Transgender bathroom bill withdrawn

Rep. Susan Lynn (R-57)

State Rep. Susan Lynn (R-57) proposed legislation in January 2016 that would require public school students in kindergarten through college to use the bathroom and locker room that corresponded with the sex listed on their birth certificates. Four months later, she withdrew the bill. "I am still absolutely 100 percent in support of maintaining the privacy of all students. But I'm going to roll the bill over until next year so we can work on those issues," Lynn said.

House Bill 2414 drew criticism from local media and some companies threatened to withhold business from the state if the bill were passed. Lynn said that was not why she withdrew the bill; instead, she put it on hold in order to further study the issue. She said school districts in Tennessee were "largely following what the bill says."

While HB 2414 was still in committee, Gov. Bill Haslam (R) expressed concern about the bill. “I’m hearing that our school boards have figured out how to adjust to each situation that arises, and to date, I’m not hearing parents say we have [a] problem in our schools today,” said Haslam.

Attorney General Herbert Slatery (R)

State Reps. Mike Stewart (D-52) and Harry Brooks (R-19) asked for an opinion on the issue from Tennessee Attorney General Herbert Slatery (R). Slatery responded by warning that the state could lose federal Title IX funding if the bill were passed.

“	As things currently stand, we must, as a practical matter, assume that H.B. 2414 would violate Title IX, because the enforcer of Title IX has clearly interpreted — and enforced — Title IX to prohibit as 'discriminatory on the basis of sex' what H.B. 2414 is designed to accomplish.	”
—Attorney General Herbert Slatery (April 2016)

Stewart said Slatery's opinion was the "final nail in the coffin" for the bill. He and State Rep. John Ray Clemmons (D-55) said the bill could also hinder the state's goal of creating a business-friendly climate. Executives of dozens of companies had signed a letter to state lawmakers asking them to reject the bill on the grounds that it was discriminatory.

David Fowler, former state senator and president of the Family Action Council of Tennessee, objected to Slatery's opinion. He said the attorney general had used settlement agreements rather than court decisions to warn the state legislature away from passing the bill. "Settlement agreements have no persuasive value as a matter of law, unlike the court decisions that have actually ruled in favor of sex-designated bathrooms," Fowler said.

After the bill was withdrawn, Fowler issued a statement:

“	But we join the thousands of parents across the state who are profoundly disappointed that at this point in the process Rep. Lynn has decided not to proceed with a bill that would have simply protected the privacy of the children they have entrusted to our public schools.	”
—David Fowler (April 2016)

In addition to receiving support from the Family Action Council of Tennessee, the bill was backed by approximately 30 pastors from the Tennessee Pastors Network. At least 67,000 state citizens opposed the bill, as two transgender high school students turned in that many signatures to the governor's office. They were joined by the American Civil Liberties Union of Tennessee, the Tennessee Equality Project, the Tennessee Transgender Political Coalition, and the Human Rights Campaign.

Lawsuits against federal government

On May 25, 2016, eleven states filed a lawsuit against the federal government and several Obama administration officials over their interpretation of Title IX of the Education Amendments of 1972 and Title VII of the Civil Rights Act of 1964 to include transgender people. "Defendants have conspired to turn workplaces and educational settings across the country into laboratories for a massive social experiment," the lawsuit claimed.

The suit was filed in Texas by Attorney General Ken Paxton; Texas was joined by Arizona, Alabama, Georgia, Louisiana, Maine, Oklahoma, Tennessee, Utah, West Virginia, and Wisconsin. At the time, eight of the 11 states were controlled by Republican trifectas; West Virginia, Louisiana, and Maine had divided governments.

The plaintiffs referred to comments by Senator Birch Bayh, who introduced the Civil Rights Act of 1964 to the U.S. Senate, in which he allowed that the bill did not require that bathrooms nor locker rooms be sexually desegregated based on sex, nor other facilities "where personal privacy must be preserved." The lawsuit also cited a similar debate in the U.S. House during the passage of the Education Amendments of 1972; an amendment was eventually added to allow for sexually segregated living quarters. The suit also argued that guidelines issued by the Department of Education and the Occupational Safety and Health Administration (OSHA) following the administration's interpretation of the statutes "functionally exercise lawmaking power reserved only to Congress."

"While the department will review the complaint, the federal government has strong legal foundations to uphold the civil rights of transgender Americans," the Department of Justice commented on the lawsuit. Then-U.S. Attorney General Loretta Lynch said in a statement earlier in May, "There is no room in our schools for discrimination...against transgender students on the basis of their sex."

Two sitting governors join the lawsuit

On June 15, 2016, an amended lawsuit adding the governors of Mississippi and Kentucky to the plaintiff list was filed in the U.S. District Court for Northern Texas. A source in the office of Mississippi Attorney General Jim Hood (D) told the Times Record News that the Governor Phil Bryant (R) had joined "on behalf of his office, but not the state," and therefore could not use state legal resources in the suit. "I had concerns on issues of standing in the Texas case because no money has been withheld from a school. Moreover, I have a different legal opinion as to how the U.S. Supreme Court will finally decide the issue," Hood further stated.

A spokesman for Kentucky Attorney General Andy Beshear (D) also stated that Governor Matt Bevin (R) joined the suit without the support of his office. Bevin has been embroiled in a feud with Beshear and his father, former Governor Steve Beshear (D), since Bevin assumed office in January 2016.

Motion for temporary injunction

On July 6, 2016, the Texas Attorney General's office filed a request in the United States District Court for the Northern District of Texas for a preliminary injunction to prevent school officials nationwide from having to either follow the Obama administration's directive on transgender bathrooms or lose Title IX funding. Judge Reed O'Connor approved the temporary injunction on August 21, blocking the directive because the federal government did not follow the rule-making process. "The resolution of this difficult policy decision is not ... the subject of this order," said O'Connor. The Obama administration appealed the decision and asked the court to narrow the injunction to apply only to the 13 states involved. Arguments were set to be held on February 14, 2017.

Second lawsuit filed

On July 8, 2016, another 10 states filed a separate lawsuit against the four federal agencies to challenge the directive: Arkansas, Kansas, Michigan, Montana, Nebraska, North Dakota, Ohio, South Carolina, South Dakota, and Wyoming. "Current state law and federal regulations allow schools to maintain separate facilities based upon sex. The recent action ... to require showers, locker rooms, and bathrooms be open to both sexes based solely on the student's choice, circumvents this established law," said Attorney General of Nebraska Doug Peterson (R) in a press release.

Request to narrow injunction dropped

On February 10, 2017, the Trump administration announced that it would not continue to pursue the effort initiated by the Obama administration to narrow the injunction to apply only to the states involved in the lawsuit. The noticed was jointly filed by the Justice Department and the states. "The parties are currently considering how best to proceed in this appeal," the notice said, indicating the administration and the states were working on a settlement.

Local

• Local issues:
• Local ordinances
• School boards and non-discriminatory policies
  • Wisconsin
  • Virginia
  • Texas

Local ordinances

In March 2015, the Charlotte, North Carolina city council rejected an ordinance by a 6-5 vote that would have extended the categories for nondiscrimination to include sexual orientation and gender identity. The meeting about the ordinance attracted citizens on both sides of the issue. The section that would have allowed transgender people to use the bathroom of the gender they identified with was removed before the final vote. Some council members voted against the ordinance because they felt it was too weak without the bathroom section.

Eleven months later, in February 2016, the city council passed a version of the ordinance that included the bathroom clause by a 7-4 vote. State officials spoke out against the law and vowed to take action. In March 2016, a special session of the state legislature passed a bill that nullified Charlotte's ordinance and also prevented local governments from enacting such laws in the future.

School boards and non-discriminatory policies

Individual school policies on bathroom access

On June 20, 2016, The Kansas City Star published a story on individual schools that adopted policies allowing students to use bathrooms based on their gender identities. Edgar Road Elementary School in Missouri, Liberty Middle School in Washington, and Atherton High School in Kentucky adopted these policies in 2014. The story also pointed to Springfield Central High School in Massachusetts, which opened two gender-neutral bathrooms to faculty and students in March 2016. In each school studied by The Kansas City Star, principals reported little resistance to implementation of these policies by parents and community members. Principal Thomas Aberli of Atherton High School told the paper, "The most recent federal guidelines are aligned with what we've been doing for the past two years."

Wisconsin

Rep. Jesse Kremer (R)

Sen. Steve Nass (R)

In October 2015, Rep. Jesse Kremer (R) and Sen. Steve Nass (R) sponsored Assembly Bill 469 to require school boards across Wisconsin to bar transgender students from using bathrooms and locker rooms intended for the gender with which they identify. The bill sponsors also wanted the U.S. Department of Justice to stand behind school districts if challengers filed suit in response to the new law. Kremer wrote in a memo to lawmakers, "This bill reinforces the societal norm in our schools that students born biologically male must not be allowed to enter facilities designated for biological females and vice versa."

Opponents to the bill included the Transgender Legal Defense and Education Fund, which claimed the bill was inherently discriminatory toward transgender students. The firm's executive director, Michael Silverman, said, "Transgender young people already face immense harassment and bias when they are just trying to participate in their school environments as their authentic selves. Legislation like this would further stigmatize transgender students and harm their health and well-being."

Wisconsin Democrats responded by proposing their own bill that required school boards to provide "reasonable accommodations for a student to use a single-occupancy changing room or restroom if the student's parent or guardian submits a written request to the school board indicating the student identifies with another gender." The bill, AB 524, provided legal definitions for "gender identity" and "transgender pupil."

AB 469 had eight Republican co-sponsors in the state assembly and three in the state senate, and a legislative committee heard testimonies on November 19, 2015. Rep. Kremer offered an amendment on December 15, 2015, which allowed schools to have gender-neutral bathrooms that could be used by students of either gender if floor-to-ceiling separations were in place. AB 254 had 18 Democratic sponsors and was heard in committee on November 18, 2015. Neither bill saw a floor vote and both died when the legislative session adjourned on April 7, 2016.

Racine Unified School District

In January 2016, the Racine Unified School District proposed changes to its policies on bathroom use and official records for transgender students. If approved, the new policy would have allowed students to request private bathroom or changing room space from school officials if they were uncomfortable with using facilities provided based on their birth genders. The policy would also have allowed parents to request record changes to reflect students' preferred names and gender pronouns if different from official documentation. The district's proposals were presented to the school board on January 11, 2016, with a board vote on the policies scheduled for February 3, 2016. The new policy was approved on February 15, 2016.

Kenosha Unified School District

In September 2016, a federal judge issued a temporary injunction against the Kenosha Unified School District's bathroom policy for a transgender student. The ruling required the district to allow a student to use the restroom corresponding to his gender identity until the case, which had been filed in July 2016, finished progressing through the courts. Prior to the injunction, the district offered the student a private bathroom. District officials filed an appeal against the injunction. On May 30, 2017, the Seventh Circuit Court of Appeals unanimously affirmed the lower court's ruling, maintaining that the transgender student be allowed to use the restroom corresponding to his gender identity.

Virginia

Ryan McElveen

In Virginia, changes to the Fairfax County Public School's district non-discrimination policy generated debate at school board meetings in spring 2015. In 2014, the board approved the addition of sexual orientation to the policy, which prohibits discrimination against students, employees, and job applicants. Ryan McElveen introduced a proposal to include gender identity in the policy in March 2015. He argued that the district could lose federal funding based on the U.S. Department of Education's push for gender identity inclusion in school district policies. He also dismissed concerns about student safety by noting the absence of any incidents involving students of one gender using bathrooms and locker rooms for another gender.

Elizabeth Schultz

The board voted 10-1 to add gender identity to the non-discrimination policy on May 8, 2015, with a heated debate preceding the vote. Patricia Reed was the only board member to abstain from the vote. Elizabeth Schultz was the lone vote against the policy change and made the following argument during the May 8 meeting:

“	[That] a class of individuals may hurt another in a bathroom is not the issue...How those rights are protected has not been addressed by this board. We have no information about the potential cost [of implementation]. It is fiduciary malfeasance to undertake anything without understanding the germane costs of such action.	”
—Elizabeth Schultz, (2015)

Freddy Burgos, a parent of three students in the district, stated at a meeting before the vote that the policy would decrease academic performance by distracting students and harm minorities, saying "It's anti-Black ... It's anti-Christian." He also suggested that the policy would infringe on student rights "by institutionalizing that boys and men can dress like girls in school." Another parent quoted by Reston Now stated that the policy would make schools more attractive to sex offenders. Emma Chattin, a reverend with the Metropolitan Community Church of Northern Virginia, supported the policy change:

“	All I have heard [in citizen testimony] is fear...One thing I can assure you of is this nation never moved forward in fear. It is not a matter of affirming something you don’t believe in. These kids are already here.	”
—Emma Chattin, (2015)

Houston, Texas

Voting on LGBT Issues
Ballot Measures
By state
By year
Not on ballot
Local Local LGBT County responses to Obergefell v. Hodges

A referendum on the anti-discrimination ordinance known as the Houston Equal Rights Ordinance (HERO) was on the ballot for Houston voters in Harris County, Texas, on November 3, 2015. It was defeated, meaning that the ordinance was repealed.

In May 2014, with Mayor Annise Parker’s backing, the Houston City Council passed the ordinance targeted by this veto referendum in an 11-6 vote. The ordinance would have banned discrimination based on sexual orientation and gender identity—criteria not covered by federal anti-discrimination laws—especially "in city employment, city services, city contracting practices, housing, public accommodations, and private employment." The ordinance would have also made prohibitions against discrimination based on sex, race, color, ethnicity, national origin, age, familial status, marital status, military status, religion, disability, genetic information, and pregnancy explicit in the city's code. Discrimination based on these characteristics was already prohibited by federal law.

The ordinance was designed to exempt religious institutions and organizations from compliance.

The ordinance would have made it a Class C misdemeanor to violate the ordinance and would have dictated a fine of between $250 and $500 for each violation. The ordinance was designed to count each day or part-day that "a violation is committed, continued, or permitted" as a separate violation. It would have set a cap of $5,000 on the total amount of fines that could be imposed for the same complaint and victim.

See also

• 

  2016 coverage on Ballotpedia

• 

  Civil liberties policy on Ballotpedia

• 

  Presidential election, 2016

• United States Congress elections, 2016
• State executive official elections, 2016
• State legislative elections, 2016
• Congressional LGBT Equality Caucus
• 2016 presidential candidates on gay rights

Footnotes

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