Biden DOJ Tells West Virginia And Arkansas To Cut The Sh*t, Quit Kicking Trans Kids!
What a difference an AG makes! With Bill Barr out and Merrick Garland in as attorney general, the federal government is finally sticking up for trans kids amid an onslaught of state laws targeting them for harassment and abuse. Yesterday, the Justice Department sought to intervene in cases pending in West Virginia and Arkansas involving access to medical treatment and educational equality for trans kids. Because protecting children is what decent adults do, and now we have some of them running the executive branch.
On Wednesday the Department of Education clarified that excluding trans kids from athletic teams would be considered a violation of Title VII — a reversal of Betsy DeVos's parting kick at LGBTQ youth — and threatened to withhold funds from jurisdictions that violated the civil rights of trans students. Then yesterday the DOJ filed a statement of interest on behalf of an 11-year-old girl being excluded from joining the middle school track team under a recently enacted West Virginia law.
The DOJ points out that there is no scientific or statistical proof that trans girls, who constitute a whopping 0.5 percent of the population, pose any danger to cis girls and women's access to sports, despite the law's purported justification that "[b]iological males would displace females to a substantial extent if permitted to compete on teams designated for biological females" and thus the school must keep this poor little cheerleader off the middle school track team.
"The United States does not concede the accuracy of these definitions," the government writes in a footnote. And indeed it refuses to concede that West Virginia can simply get around the violations of Titles IX and VII, as well as the Equal Protection Clause of the Fourteenth Amendment, simply by characterizing trans girls as "biological males." And furthermore, this issue has already been decided in the case of Gavin Grimm, who spent his entire high school life fighting in court to use the appropriate bathroom, AND WON. Not to put too fine a point on it, but that case was in the Fourth Circuit, and so is West Virginia — so these legislators know damn well that this is all illegal.
Over in Arkansas, the legislature just overrode a gubernatorial veto to enact a ban on gender-affirming healthcare for trans kids. Because what better way to show you love children than to deny them access to healthcare and intervene in the doctor patient relationship to tell them they're crazy and deviant, right?
In a statement of interest, the DOJ points out that the Arkansas statute not only interferes with the First Amendment rights of physicians to issue accurate advice to their patients, but it discriminates against trans kids on the basis of sex by denying them access to the same treatments cisgender children routinely get. For instance, a physician in Arkansas can prescribe puberty blockers to delay precocious puberty, or to postpone puberty to allow children with idiopathic short stature to grow a few more inches. But those same blockers are off limits for trans kids, forcing them to undergo irreversible changes into adult bodies which do not match their gender identities.
As the Justice Department notes, it's straightforward sex discrimination to allow a 17-year-old cisgender girl to get a breast augmentation, but not a 17-year-old trans girl, simply because the state insists on calling the second one a "boy." And Arkansas' law runs directly counter to Justice Neil Gorsuch's holding in Bostock v. Clayton County last summer, which held that discrimination on the basis of sexual orientation or gender identity is illegal sex discrimination.
So, Happy Pride Month to and from the Justice Department. Hang in there, kids, we love you!
[Brandt v. Rutledge docket via Court Listener / B. P. J. v. West Virginia State Board of Education docket via Court Listener]
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Liz Dye lives in Baltimore with her wonderful husband and a houseful of teenagers. When she isn't being mad about a thing on the internet, she's hiding in plain sight in the carpool line. She's the one wearing yoga pants glaring at her phone.