It comes down to weighing hypothetical harms and unreasonable fears against real and persistent discrimination at schools, on the job and in public places.
Leading a group of 12 states and the District of Columbia, Washington state Attorney General Bob Ferguson has filed a “friend of the court” brief in the U.S. District Court in the Northern District of Texas urging the court not to issue an injunction that would block federal guidelines that now prohibit schools and employers from discriminating against transgender individuals who seek to use restrooms, changing rooms and similar facilities that are consistent with their gender identity.
In May, Texas and 11 other states filed suit, seeking a temporary injunction against federal rules issued by the Obama administration that ensured the rights of transgender people.
Washington is one of 19 states that had already extended explicit civil rights protections that prohibit discrimination based on gender identity.
Last year the state’s Human Rights Commission implemented rules regarding sexual orientation and gender identity, providing practical guidance on the anti-discrimination law that the Legislature passed in 2006. Among them was a rule that says a transgender person can’t be required to use a “gender segregated” restroom or locker room that is inconsistent with his or her gender identity, meaning a transgender person who identifies as a female must be allowed to use a women’s restroom.
Since then, the rules have faced an unsuccessful challenge in the Legislature and were the subject of a proposed initiative, I-1515, that sought to reverse them. Last month, I-1515 backers admitted they hadn’t been able to gather the minimum 246,000 signatures needed to put the measure on the November ballot.
The reversal sought by some in the Legislature and those seeking the ballot measure relies on the same unfounded speculation — fed by prejudices and lack of understanding of who transgender people are — that is driving Texas and the other 11 states to overturn the federal rules.
“While Texas and other states hide behind unfounded safety concerns, this case is really an attempt to deny the civil rights of our transgender friends, co-workers and family members,” Ferguson said in a release Wednesday.
In the brief, Ferguson refutes the claims that allowing people to use facilities consistent with their gender identification will lead to increased harassment, loss of privacy or violence in restrooms, noting that the evidence cited in the request for an injunction was limited to one Texas school administrator’s speculation that some would use the federal rules to engage in inappropriate activities.
Specifically, Ferguson quotes former Snohomish County Sheriff John Lovick, describing Washington state’s experience: “We’ve protected gay and transgender people from discrimination in Washington for 10 years, with no increase in public safety incidents as a result.” Lovick further noted that indecent exposure, voyeurism and sexual assault are already illegal.
Likewise, Ferguson notes the experience of the Los Angeles Unified School District, second-largest in the country with 640,000 students, that since it put its gender identity protections in place in 2004, it has had no related issues, problems or lawsuits. The Massachusetts Chiefs of Police Association instead reported that such accommodations have improved public safety.
Transgender students and employees, on the other hand, are commonly exposed to discrimination, harassment and violence. A 2011 nationwide study of transgender people found that 78 percent of those responding reported harassment by students, teachers or staff while in school and a third reported physical assaults. On-the-job discrimination can lead to workers quitting or changing jobs, and has contributed to a doubling of the unemployment rate for transgender people.
The discrimination experienced can lead to serious health consequences, including depression and suicide. Simply denying or discouraging the use of a restroom can lead to dehydration and urinary tract and kidney infections.
Psychologists and psychiatrists recognize that the emotional harms suffered by transgender people are not caused by being transgender but by the harassment and stigma they must endure, the brief points out.
The scale obviously tips away from those who would force transgender people to use a restroom or other facility that is inconsistent with their gender identity.
The U.S. Supreme Court, in a 1985 case, ruled that “mere negative attitudes, or fear … are not permissible bases” for restricting the civil rights of people viewed as different, the brief states.
In speaking out to protect the civil rights of transgender people throughout the nation, the attorney general serves as an example for other state officials and lawmakers to follow in respecting the intent of the law the Legislature passed in 2006.