Politics

White House warns states that their anti-transgender bills are illegal

Joe Biden, Democratic presidential nominee, LGBTQ issues, virtual fundraiser
Photo: Shutterstock

The White House warned states that are considering anti-transgender bills this year that those bills are illegal under federal law.

“The president believes that trans rights are human rights and that no one should be discriminated on the basis of sex. Not only is this the law of the land, it’s his own deeply held view,” said White House Press Secretary Jen Psaki during a press briefing.

Related: House Republican introduces anti-trans legislation that could lead to genital exams for school girls

Psaki was asked about President Joe Biden’s views on the dozens of states that are considering anti-transgender laws. According to HRC’s latest count, 37 bills have been proposed in state legislatures that would ban transgender girls and women from playing school sports.

Mississippi’s anti-trans sports bill has already passed the state’s house and senate and is expected to be signed by the Republican governor soon.

Washington Blade reporter Chris Johnson asked Psaki about Biden’s views on that legislation, and she first specified that Biden has not actually talked to any state legislators about anti-transgender bills directly.

She then brought up Biden’s executive order that he signed on his first day in office that said that federal civil rights legislation that bans discrimination on the basis of sex also bans anti-LGBTQ discrimination.

“The anti-discrimination executive order that the president signed is focused on children being able to learn without worrying about whether they will be discriminated against,” she said. “And this means not being denied access to the restroom, the locker room, or school sports.”

“Him signing this executive order sends a pretty clear message to state legislators, to lawmakers about where he stands on this issue and what his position is as president,” she concluded.

Jen Psaki warns state legislatures anti-trans bills against the law

Posted by Washington Blade on Friday, March 5, 2021

Biden’s executive order used the legal reasoning that the Supreme Court adopted in the majority opinion in Bostock v. Clayton Co., which said that Title VII’s ban on job discrimination “based on sex” means that anti-LGBTQ discrimination is banned since it’s impossible to discriminate against LGBTQ people without taking their sex into account.

Biden’s order extends this reasoning to other areas of discrimination covered by federal law, including Title IX’s protections in education.

Since state legislatures cannot overturn federal civil rights protections, this means that states like Mississippi and, last year, Idaho that attempt to ban transgender girls from school sports are in violation of federal law.

While Republicans believe that transgender girls and women participating in school sports means that cisgender girls and women will somehow get forced out of those sports – something that hasn’t happened even though many states already allow transgender people to play in sports as their gender – advocates of equality say that these bills are really about discrimination.

“Claiming that being assigned male at birth makes one constrained to the category of man and the so-called biology of maleness for their entire lives is tantamount to erasing the embodied and lived experience of trans people. A woman who is trans is a woman,” wrote the ACLU’s Chase Strangio in a Medium article about the GOP attempts to force transgender girls and women out of school sports.

“And all the science we have demonstrates that not affirming trans and gender-expansive kids in who they are results in catastrophic mental health consequences including devastating rates of suicidality.”