Appeals Court Denies Request to Stay Order Preserving Passports for Many Trans, Nonbinary, Intersex Citizens

WASHINGTON - A civilian employee of the Illinois National Guard today filed a class action lawsuit in federal court challenging a Trump-Vance administration policy prohibiting transgender and intersex federal employees from using restrooms aligned with their gender. The complaint was filed on behalf of Ms. Withrow by the American Civil Liberties Union, the ACLU of D.C., the ACLU of Illinois, and Democracy Forward. Plaintiff LeAnne Withrow of Springfield, Illinois, is a lead military and family readiness specialist and civilian employee for the Illinois National Guard. Previously, she served as a staff sergeant for the National Guard and is the recipient of multiple commendations and awards, including the Illinois National Guard Abraham Lincoln Medal of Freedom. Following a January 20 executive order signed by President Trump, officials with the U.S. Office of Personnel Management, the U.S. Department of Defense, and the federal National Guard Bureau issued notices to all employees requiring use of designated restrooms strictly based upon their “biological sex,” as inaccurately defined in the executive order. Soon after, Withrow was told by supervisors within her chain of command that she could not use restrooms designated for women. On May 5, Ms. Withrow filed a class action complaint to the Army National Guard Bureau Equal Opportunity Office (NGB-EO), and later to the U.S. Equal Employment Opportunity Commission (EEOC), challenging the federal order, but both the NGB-EO and EEOC failed to resolve the matter. Ms. Withrow has now gone to court to stop this unlawful and discriminatory order. Today’s class action lawsuit alleges that the executive order and implementation actions violate Title VII of the Civil Rights Act of 1964, which prohibits sex discrimination in employment. In a 2020 ruling, the U.S. Supreme Court held 6-3 that Title VII prohibits discrimination against transgender workers on the basis of their sex. The complaint also alleges that the order and implementation violate the federal Administrative Procedure Act. “No one should have to choose between their career in service and their own dignity,” said LeAnne Withrow, a civilian federal employee for the Illinois National Guard. “I bring respect and honor to the work I do to support military families, and I hope the court will restore dignity to transgender people like me who serve this country every day.” “No federal employee should have to face hostility and discrimination while they are working to serve the American people,” said Shana Knizhnik, Senior Staff Attorney for the ACLU’s LGBTQ & HIV Project. “We look forward to demonstrating to the court that this unlawful executive order not only denies the existence of transgender and intersex employees, it is yet another attempt by the Trump administration to target and punish transgender people for simply being who they are. There is no place for such blatant discrimination in our government or society.” “We cannot let the Trump administration target transgender people in the federal government or in public life,” said Michael Perloff, Senior Staff Attorney at the ACLU-D.C. “An executive order micromanaging which bathroom civil servants use is discrimination, plain and simple, and must be stopped.” “It is absurd that in her home state of Illinois, LeAnne can use any other restroom consistent with her gender– other than the ones controlled by the federal government,” said Michelle Garcia, Deputy Legal Director at the ACLU of Illinois. “The Trump Administration’s reckless policies are discriminatory and must be reversed.” “This policy is hateful bigotry aimed at denying hardworking federal employees their basic dignity simply because they are transgender,” said Kaitlyn Golden, Senior Counsel at Democracy Forward. “It is only because of brave individuals like LeAnne that we can push back against this injustice. Democracy Forward is honored to work with our partners in this case and are eager to defeat this insidious effort to discriminate against transgender federal workers.” Today’s complaint can be found here.

OKLAHOMA CITY – Teachers and students in Oklahoma filed a brief in the 10th Circuit Court of Appeals this week asking the court to enjoin the state's classroom censorship law in its entirety. HB 1775 restricts teachers’ abilities to discuss race, sex, and American history in the classroom, and since its passage in 2021 and throughout the lifecycle of the case, the law has contributed to widespread fear and self-censorship among educators. “Students in Oklahoma deserve the opportunity to learn the full truth about American history, something that is currently impossible under HB 1775,” said Emerson Sykes, senior staff attorney with the ACLU’s Speech, Privacy, and Technology Project. “We are proud to have had success striking down the higher education provisions in this censorial law, and we will continue to work to ensure that K-12 classrooms can be open and free so that teachers no longer fear repercussions for doing their jobs and students can enjoy a rigorous, inclusive education.” The district court in BERT v. Drummond enjoined part of HB 1775 but left much of the law in place. Now, the ACLU and partners, on behalf of a diverse group of teachers and students, ask the 10th Circuit to enjoin HB 1775 in its entirety because the law violates the 14th Amendment by failing to provide teachers notice of what the law prohibits and the First Amendment by denying students the right to receive information. The 10th Circuit has the opportunity to issue the first circuit court opinion striking down a classroom censorship statute, setting a powerful precedent nationwide. “Anyone who is concerned about free speech and free expression should be concerned about this law,” said Rebecca Barrett, staff attorney with the ACLU of Oklahoma. “Anyone who is concerned about education should be concerned about this law. It is a blatant attack on public education in America, and that is why we are now asking the Tenth Circuit to enjoin the law in its entirety and to ensure Oklahoma students have access to a robust and inclusive education.” As part of their appeal, the government asserts that curriculum and book choices constitute “government speech.” If adopted, this theory could remove K-12 classrooms from First Amendment scrutiny altogether, leaving classrooms totally unprotected from partisan, political interference with children’s education. "The State's use of the government speech doctrine to try and defend HB 1775 should concern everyone,” said Maya Brodziak, senior counsel with the Lawyers’ Committee for Civil Rights Under the Law. “Their argument is that every time a teacher speaks in class, the teacher speaks only as the government's mouthpiece. School, however, is not a place where students go to learn only what the government believes but rather to learn how to think about and analyze a variety of viewpoints – including but not limited to – the view adopted by the government." The lawsuit was originally filed in 2021 in the United States District Court for the Western District of Oklahoma by the American Civil Liberties Union, ACLU of Oklahoma, the Lawyers Committee for Civil Rights Under Law, and pro bono counsel McDermott Will & Schulte LLP on behalf of a wide range of plaintiffs across higher ed and K-12 schools, including the Oklahoma State Conference of the National Association for the Advancement of Colored People (NAACP-OK); the American Indian Movement (AIM) Indian Territory on behalf of itself and its members who are public school students and teachers; a high school student; and Oklahoma public high school teachers Anthony Crawford and Regan Killackey. Amicus briefs were filed by a wide range of civil rights and educational advocacy groups, including Oklahoma Appleseed, the NAACP’s Legal Defense Fund, the Southern Poverty Law Center, the American Federation of Teachers, and the National Academy of Education. The 10th Circuit brief can be viewed here.

WASHINGTON – Attorneys representing a 15-year-old West Virginia transgender girl, Becky Pepper-Jackson, and her mother Heather Jackson today filed their response brief to the Supreme Court of the United States in their challenge to a 2021 West Virginia law barring Pepper-Jackson from participating on girl’s athletic teams. Becky and her mother are represented in West Virginia v. B.P.J by the American Civil Liberties Union, the ACLU of West Virginia, Lambda Legal, and Cooley LLP. “I play for my school for the same reason other kids on my track team do–to make friends, have fun, and challenge myself through practice and teamwork,” said Becky Pepper-Jackson, 15, of West Virginia. “And all I’ve ever wanted was the same opportunities as my peers. Instead, I’ve had my rights and my life debated by politicians who’ve never even met me but want to stop me from playing sports with my friends. I know this case isn’t just about me, or even just about sports. It’s just one part of a plan to push transgender people like me out of public life entirely. I’m proud to stand up alongside my mom for what I believe and who I am and I want other transgender kids to know they aren’t alone.” “I’ve always raised my children to stay true to themselves, no matter what anyone else tells them,” says Heather Jackson, mother of Becky Pepper-Jackson. “"I'm so proud of Becky and the young woman she's becoming, one who is hardworking, kind, and a team player. My daughter and every transgender kid like her deserves the freedom to be themselves and a future where no one is discriminated against just because of who they are.” “This case is fundamentally about the ability of transgender youth like Becky to participate in our schools and communities,” said Joshua Block, Senior Counsel for the ACLU’s LGBTQ & HIV Project. “School athletics are fundamentally educational programs, but West Virginia’s law completely excluded Becky from her school’s entire athletic program even when there is no connection to alleged concerns about fairness or safety. As the lower court recognized, forcing Becky to either give up sports or play on the boy’s team–in contradiction of who she is at school, at home, and across her life–is really no choice at all. We look forward to defending her rights, and the rights of every young person, to be included as a member of their school community, at the Supreme Court.” “Becky simply wants to be with her teammates on the track and field team, to experience the camaraderie and many documented benefits of participating in team sports,” said Lambda Legal Counsel, Nonbinary & Trans Rights Project Director, Sasha Buchert. “It has been amply proven that participating in team sports equips youth with a myriad of skills – in leadership, teamwork, confidence, and health. On the other hand, denying a student the ability to participate is not only discriminatory, but harmful to a student’s self-esteem, sending a message that they are not good enough and deserve to be excluded. In the end, can we not just let the kids play?” The Supreme Court has also agreed to hear Little v. Hecox, a challenge brought by a transgender student against Idaho’s 2020 ban on transgender athletes and requirements for sex testing. The American Civil Liberties Union, the ACLU of Idaho, Legal Voice, and Cooley LLP represent the plaintiffs in this case. The two cases charge the bans with violating the rights of transgender and cisgender female students under the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution. In addition, West Virginia v. B.P.J. argues that the bans violate Title IX, the federal law prohibiting sex discrimination in educational programs. Federal courts have blocked enforcement of these bans in both lawsuits. Since 2020, 27 states have banned transgender youth from playing school sports. Many of these bans allow for invasive forms of sex testing that put all female student-athletes at risk and embolden intrusive challenges to student athletes' sex. In Florida, a 15-year-old junior varsity volleyball player was the subject of a police investigation after an anonymous accusation, prompting local officials to draft a 500-page report investigating her medical history, body weight, and anatomy. In Utah, a teenage basketball player was accused of being transgender by a member of the state board of education, leading to threats of violence against her and her family, and a teenager in Maine faced a similar attack from a state senator. In May, President Donald Trump similarly targeted a 16-year-old transgender girl for participating in a high school track meet. Under an Arizona ban, a cisgender male student was prohibited from participating on the boy’s team at his high school because of a clerical error that listed him as female on his original birth certificate. Many women athletes have spoken out against bullying and discrimination against transgender student-athletes, including Billie Jean King, Megan Rapinoe, Dawn Staley, Sue Bird, and Brianna Turner, as well as leading organizations fighting for gender equality in athletics including the Women’s Sports Foundation, the Women’s National Basketball Player’s Association, and the National Women’s Law Center. Today's brief in West Virginia v. B.P.J. can be found here. Today's brief in Little v. Hecox can be found here. These cases are part of the ACLU’s Joan and Irwin Jacobs Supreme Court Docket.