Obama’s guidance for transgender people and school bathrooms is not “new and surprising”

In the reaction to the Obama administration’s guidance for transgender people and school bathrooms, there has been a very consistent misconception perpetuated by journalists, pundits, and even some legal experts: that the guidance is based on some new, unheard of legal principle.

The idea behind the guidance is that existing federal civil rights laws that ban sex discrimination, including Title IX (for education), also protect trans people, because anti-trans discrimination is rooted in expectations of what people of certain sexes should be like. The administration’s guidance tells public schools about this standard, asking them to not discriminate against trans people, including in bathrooms and locker rooms.

Some members of the press and pundits apparently find this to be a fringe interpretation of federal law. In a recent New Yorker piece, Harvard law professor Jeannie Suk wrote, “These interpretations of federal anti-discrimination law are new and surprising.”

But as Chase Strangio, an attorney with the American Civil Liberties Union points out in Slate, it is simply not true that this legal principle is “new and surprising”:

As Jillian Weiss, an employment lawyer and law professor, explained recently, “So many federal courts have specifically held that federal laws prohibiting sex discrimination also include sex discrimination against transgender people that such protections should be considered a given.” These federal courts span from Maine to California and include the federal courts of appeals for the 1st, 6th, 9th, and 11th circuits. Additionally, the U.S. Court of Appeals for the 4th Circuit also recently held that the Education Department’s interpretation of Title IX with respect to transgender individuals and restrooms use consistent with gender identity is reasonable and valid.

In fact, it’s not even just some of the courts that have affirmed this legal principle. The Obama administration has explicitly backed it for years. In 2012, the Equal Employment Opportunity Commission, a federal agency that oversees discrimination complaints in the workplace, embraced the legal concept. Shortly after, in 2013, the Department of Justice and Department of Education signed on board, with officials stating in a settlement that Title IX bars anti-trans discrimination. And in 2014, the Department of Education issued a guidance on sexual assault that said Title IX bans discrimination on the basis of gender identity.

There is a catch: Not all higher courts, particularly the US Supreme Court, have backed the legal concept. Until they do, it’s not law of the land. But it’s still a fairly widespread legal argument — certainly widespread enough to not be treated as some new, fringe notion.

It is true that the guidance is based on a legal principle that perhaps much of the general public and members of the media hadn’t heard of until the administration’s guidance. But a lot of people not knowing about something doesn’t mean it’s new; it just means a lot of people haven’t been paying attention.