DOJ and ACLU to argue anti-trans laws are unconstitutional

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As the U.S. Supreme Court was releasing its questionable ruling in Fulton v. City of Philadelphia on June 17, the U.S. Department of Justice was quietly filing court documents to support two pro-trans lawsuits against the states of West Virginia and Arkansas.

The action by the DOJ was in tandem with the American Civil Liberties Union (ACLU). The ACLU’s briefs argue that recently passed anti-trans laws in both states violate the Equal Protection Clause of the U.S. Constitution.

As PGN reported previously, Republican-led legislatures and Republican governors are pushing a myriad of anti-LGBTQ laws to circumvent a possible enactment of the Equality Act.

Anti-LGBTQ legislation has become a focal point of the Republican Party since January, suggesting that the new culture wars will pivot off LGBTQ discrimination in advance of the 2022 midterm elections.

GOP-led state legislatures have found that focusing on narrowly specific anti-trans issues, like trans athletes in girls’ sports, so-called “bathroom bills” and gender affirming medical treatments for trans youth, are easy ways to generate both GOP support and stoke fundraising. The filings by the DOJ state unequivocally that these laws violate federal equal protection laws already in place.

The filings are also a powerful statement of legal intent by the Biden administration to counter anti-trans laws being pushed in Republican-led states.

West Virginia’s House Bill 3293 exemplifies the discriminatory nature and culture wars aspect of these bills. As the DOJ filing explains, H.B. 3293 violates both the Equal Protection Clause and Title IX of the Education Amendment of 1972 because H.B. 3293 bans trans athletes in public schools from competing in girls’/women’s sports at the middle school, high school and college levels.

The ACLU filed its brief in the West Virginia case in response to a complaint by the parents of a high school student. The parents said their daughter, who is trans, was barred from trying out for the school’s cross-country track team because of the stipulations of H.B. 3293.

“The State claims that H.B. 3293 will protect athletic opportunities for girls,” the ACLU filing stated. “Neither the facts nor the law supports that assertion. To be sure, there remain significant barriers to providing full equity in athletics for female students. But prohibiting participation by transgender girls, who make up ‘approximately one half of one percent’ of the United States’ population, is not one of them.”

According to the DOJ, the merits of the West Virginia case are strong because the law is “discriminatory on its face.”

“H.B. 3293 violates Title IX by effectively prohibiting, solely on the basis of sex, a certain subset of students — girls who are transgender — from participating in athletic programs offered by recipients of federal financial assistance,” said the DOJ filing.

Concomitantly, the DOJ asserts that H.B. 3293 violates the Equal Protection Clause because the state cannot justify the law under so-called “heightened scrutiny,” which is legal threshold for evaluating discrimination claims under the 14th Amendment.

“West Virginia cannot demonstrate that prohibiting a handful of transgender student athletes from playing on athletic teams consistent with their gender identity is substantially related to any important government interest,” the DOJ asserted.

In April, DOJ’s Division of Civil Rights Division published a memo which stated that transgender students are covered by Title IX. The DOJ filing in the West Virginia case supports that conclusion.

The Arkansas case is different and more far-reaching in its impact on trans youth. That case addresses Act 626, previously H.B. 1570, the “Save Adolescents from Experimentation Act” (SAFE Act).

The bill was introduced into the Arkansas House of Representatives on February 25, 2021. Act 626 is the first ever bill passed in the U.S. to outlaw any gender-affirming medical treatment for persons under eighteen years of age.

According to the text of the bill, the rationale for outlawing such medical treatment for minors is stated: “Only a small percentage of the American population experiences distress at identifying with their biological sex” and “Even among people who have undergone inpatient gender reassignment procedures, suicide rates, psychiatric morbidities, and morality rates remain markedly elevated above the background population.”

In response, the act outlawed providing gender transition procedures (including the prescription of hormones or puberty blockers) and performing gender reassignment surgery, as well as “referring any patient to another healthcare professional for such matters.”

The bill became law over the veto of Gov. Asa Hutchinson on April 6, 2021, attracting national and international criticism of the Arkansas legislature.

The DOJ backed an ACLU-filed lawsuit challenging Act 626, claiming that the Arkansas ban violates the Equal Protection Clause of the 14th Amendment.

“Prohibiting medically necessary care in the manner proscribed by Act 626 amounts to intentional discrimination against transgender minors on the basis of sex,” the filing stated.

To support its argument, the DOJ cited the landmark 2020 U.S. Supreme Court ruling in Bostock v. Clayton County. Referencing that opinion, authored by conservative originalist Justice Neil Gorsuch, the DOJ posited that “one cannot ‘discriminate against a person for being . . . transgender without discriminating against that individual based on sex.’”

The DOJ wrote, “For example, a minor whose assigned sex at birth was male can receive puberty-blocking medication to treat precocious puberty so that the minor can live as a boy, rather than prematurely experiencing sexual development,” the DOJ filing stated. “But a minor whose assigned sex at birth was female cannot receive puberty-blocking medication so that the minor can live as a boy, rather than developing the secondary sex characteristics of a woman. This difference in outcome is based solely on a difference in their sex assigned at birth.”

Chase Strangio, deputy director for Trans Justice with the ACLU’s LGBTQ & HIV Project, issued a statement in response to the DOJ filings. “[These] filings from the Department of Justice send a powerful message that discrimination against transgender youth is not just wrong, it is also plainly unconstitutional,” Strangio stated.

He added, “These filings from the Department of Justice confirm what we have been telling legislatures all year: Banning trans youth from sports and denying trans youth health care violates the Constitution and federal law. We hope that state legislatures finally get the message.”