In a spate of recent rulings, district and circuit courts have held that anti-discrimination laws in education and employment extend protections to transgender people.

The net effect of the rulings, which has gone largely unnoticed, is that a new legal precedent is being established allowing transgender people to use the bathrooms that correspond with their gender identities — all without any action from Congress or the Trump administration.

There’s a very clear trend among federal courts that our nation’s laws that prohibit sex discrimination also prohibit discrimination on the basis of gender identity and sexual orientation.

In employment and education, blocking people from accessing a bathroom is a clear violation of the law.

--Sarah Warbelow, HRC

Who says so? The 1st, 6th, 9th, and 11th circuit courts, which have all ruled that Title VII anti-discrimination laws in employment extend to sexual orientation and gender identity.

Most courts interpret Title IX and Title VII in tandem not perfectly, but the rulings are influential.

--Warbelow

In a 7th Circuit ruling last week, Judge Ann Claire Williams said a policy that requires an individual to use a bathroom that does not conform with his or her gender identity punishes that individual for his or her gender non‐conformance, which in turn violates Title IX anti-discrimination laws.

Cases challenging school policies are also making their way through the Richmond-based 4th Circuit and the Cincinnati-based 6th Circuit.

In December, the 6th Circuit denied a school’s request to stay a district court order allowing an 11-year-old transgender girl to use the girl’s bathroom. Citing precedent, the judges said “sex stereotyping based on a person’s gender non-conforming behavior is impermissible discrimination.”

Given the lower court rulings, LGBT rights advocates say the Trump administration’s hands are now tied.

I don’t know if the Department of Justice intends to issue new guidance, but it’s impossible at this point to issue guidance that is different than what the Obama administration issued without disregarding the strong consensus among the federal courts.

--Shannon Minter, National Center for Lesbian Rights

The Department of Justice refused to comment on whether it plans to issue new guidance. The Education Department’s Office for Civil Rights (OCR) said it had no new information to share at this time.

OCR’s mission is to ensure equal access to education and to promote educational excellence through vigorous enforcement of civil rights in our nation’s schools. As the Department continues to consider the legal issues involved in protecting transgender students’ rights under Title IX, OCR will continue to investigate complaints of discrimination and harassment, including complaints from LGBTQ students, consistent with OCR’s jurisdiction under the federal civil rights laws that it enforces.

--OCR statement

Unfortunately LGBT advocates in the past with the same-sex marriage issue and now with the trans rights issue seek to side-step the normal legislative and political process and have the court mandate things by fiat, which we think is an overstep of judicial authority.

--Joe Grabowski, NOM

Grabowski also worries about how the court ruling will impact religious institutions like faith-based universities that segregate students in dorms based on sex.

The reality is that transgender students are not a threat to other students, and student privacy can be respected without discriminating against transgender students.

--Eric Harrington, NEA