Louisiana LGBT Advocates Respond to Attorney General’s Opinion and Lawsuit Regarding Transgender Students

Affiliate: ACLU of Louisiana
May 26, 2016 3:30 pm

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NEW ORLEANS—Yesterday Attorney General Jeff Landry issued an Opinion, at the request of State Representative Mike Johnson and other legislators, criticizing Gov. Edwards’ Executive Order JBE 16-11 which protects the rights of all Louisianians within the scope of the Executive Branch. At the same time, Landry unilaterally joined a lawsuit, filed by the State of Texas and others, against the United States challenging the recent Guidance issued on May 13, 2016, by the Departments of Justice and Education which interpret the existing protections against sex discrimination in federal education law.

Landry’s Opinion is based on obsolete caselaw and outdated scientific information, and demonstrates that he is out of touch with current interpretations and understanding. Landry’s political posturing cannot be allowed to harm victims of discrimination merely to advance his own mean-spirited political agenda.

Attorney General Landry, in a letter dated May 18, 2016, stated: “Harassment that targets a student based on transgender identity is neither appropriate nor permissible under the law.” Landry should honor his own commitment and withdraw from his illegal participation in a lawsuit that itself is of questionable legality.

Neither Louisiana nor any other state can sue an agency just because they disagree with the agency’s guidance. If Landry disagrees with a federal agency’s interpretation of what the federal ban on sex discrimination means, he can make that argument to the court if and when it arises in a real case. Moreover, this is yet another instance in which Landry has committed the resources of the taxpayers of Louisiana without consulting the ultimate client of his office, the Governor. Joining this lawsuit is nothing more than a political stunt that will harm the taxpayers and residents of Louisiana.

Landry’s Opinion, issued at the request of a legislator who is seeking higher office, does not acknowledge caselaw that demonstrates that sex discrimination can include discrimination based on gender identity – see G.G. v. Gloucester Cty. Sch. Bd., — F.3d –, 2016 WL 1567467, at *4 (4th Cir. 2016).

Louisiana needs to protect all of its residents from discrimination of all kinds. Both Gov. Edwards’ Executive Order and the federal Guidance are designed to do just that.

Because of the current confusion over the Guidance, here is what it does:

The Guidance provides important clarity to schools that receive federal financial assistance about their existing obligations under federal law to protect all students from sex discrimination, including transgender students.

The Guidance does not change existing obligations. Title IX has long prohibited discrimination on the basis of sex, and federal courts and agencies have recognized that this includes protections for transgender students, including in single-sex spaces and activities.

The Guidance makes clear that transgender students cannot be barred from sex-segregated facilities, such as restrooms, that accord with their gender identity.

Given developments in the law in recent years, the Guidance is something that many school districts requested in order to ensure that transgender students were treated with dignity and respect consistent with federal law.

What it does not do:

It does not undermine anyone’s privacy. Ending discrimination against transgender people, including discrimination with respect to restrooms and locker rooms, does not pose any threat to individual privacy. Likewise, expelling transgender people from communal spaces does nothing to protect peoples’ privacy interests.

It does not allow boys into the girls’ rooms, because transgender girls are girls. That is who they are and how they live their lives.

It does not harm public safety in any way. Eighteen states and approximately 100 cities protect transgender individuals’ right to use the restroom that matches their gender identity, and that has not led to any increase in crimes in restrooms.

It does not allow a boy to “pretend” to be a girl to enter a girl’s restroom. Again, transgender girls are not pretending to be girls, they are simply girls.

It does not allow any person—no matter how they dress or how they look—to enter a restroom for the purpose of harming someone. Such activity is already prohibited by schools and by law, and the Guidance does not change existing law.

Gov. Edwards’ Executive Order similarly requires agencies under the umbrella of the Executive Branch to comply with current scientific and legal understanding of what it means to be transgender and to protect all Louisiana residents from unlawful discrimination. Contrary to Landry’s Opinion, it does not make new law and in no way violates the Constitutional separation of powers on which our system of democracy depends.

In schools, businesses and elsewhere across the country, transgender people have been protected from discrimination in restrooms and locker rooms for years, and, in some cases, decades. There have been no disruptions, no increase in public safety incidents, and no invasions of privacy related to those protections. In fact, transgender youth are many times more likely to be the victims of crime than the perpetrators. The problem is not with transgender people, it is with transphobia and prejudice.

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