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Gender Identity Issues are Front and Center in 2017

From President Trump’s Recent Executive Order and the U.S. Supreme Court’s Anticipated Decision this spring on Use of Public Bathrooms According to One’s Gender Identity, to a Case Pending in Minnesota Federal Court Involving Claims of Discrimination in Health Care under the Affordable Care Act and the Minnesota Human Rights Act

On February 22nd, the Trump administration essentially undid President Obama’s May 2016 guidance to public schools, which suggested the schools could lose public funding if they did not allow students to use the bathroom of their gender identity, rather than their birth gender. In March, the United States Supreme Court will consider whether Title IX of the Higher Education Act, which prohibits discrimination on the basis of “sex,” includes discrimination on the basis of “gender identity.” The case, Gloucester County Schools Board vs. G.G., involves a transgender student’s use of school bathrooms, an issue that has split school districts, legislatures, and courts around the country. Thus, while President Obama’s interpretation of federal law no longer applies, the Supreme Court’s decision in Gloucester likely will have far-reaching implications going well beyond issues of school bathroom policies. Meanwhile, in Minnesota, issues involving gender identity are hitting closer to home in a case pending in federal district court.

In the Minnesota case, Rumble v. Fairview, a transgender man alleges he received substandard medical care and was subjected to unnecessary trauma by the Defendants – his medical providers – due to his transgender status. The man filed a lawsuit last year, alleging sexual orientation/gender identity discrimination under the Minnesota Human Rights Act (MHRA), as well as sex discrimination under the Affordable Care Act (ACA). Section 1557 of the ACA prohibits discrimination in “any health program or activity,” on the basis of sex, among other grounds. Because the ACA prohibits discrimination on the basis of “sex,” whereas the MHRA specifies “gender identity” in the statute, the trial court in Rumble recently took the unusual measure of staying proceedings on the federal claims until the Supreme Court decides Gloucester, while allowing the case to proceed on the state claims of sexual orientation/gender identity discrimination brought under the MHRA.

The Supreme Court’s ruling in Gloucester as to whether use of the term “sex” in Title IX includes discrimination based on gender identity, likely will also resolve this same issue for purposes of the ACA as well as Title VII of the Civil Rights Act, which applies to employers and employees. However, the MHRA already specifically prohibits discrimination in Minnesota workplaces and other covered venues on the basis of sex, sexual orientation and gender identity. These differences between state and federal statutory language may ultimately be moot if the Supreme Court holds later this year that “sex” discrimination under federal law includes “gender identity.” However, if the Court rules otherwise and because the Trump administration’s position is to leave these issues to the states rather than the federal government, gender identity rights could wind up varying from state to state.

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