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What’s Next For Transgender Rights Lawsuits With School Guidance Rescinded

Lawyers fighting over the scope of civil rights law for transgender people are urging the Supreme Court to bring some clarity to the issues. Lawyers for a 17-year-old transgender student and the Gloucester, Va., school board that wants to limit which bathroom he can use don’t agree on much. But both sides have concluded the Trump administration’s decision this week to revoke guidance that protects transgender students’ ability to use bathrooms and locker rooms that correspond with their gender identity only heightens the need for a hearing before the nation’s highest court.

Rather than making the claims of Virginia student Gavin Grimm moot, his attorneys at the American Civil Liberties Union and their courtroom opponents are urging the U.S. Supreme Court to proceed with oral arguments scheduled for March 28.

“If anything, the confusion caused by this recent action by the Department of Justice and the Department of Education only underscores the need for the Supreme Court to bring some clarity here,” Joshua Block, a senior staff attorney at the ACLU’s LGBT & HIV Project, told reporters on a conference call on Thursday. As for Gloucester County, the school board said it “looks forward to explaining to the Supreme Court why [the rescinded guidance] underscores that the Board’s common sense restroom and locker room policy is legal under federal law.”

The high court agreed to hear two questions in the Grimm case: one, whether the former Justice and Education Departments’ interpretation of Title IX of a 1972 education law protecting students from discrimination on the basis of their sex deserved deference; and two, whether the prohibition on sex discrimination in schools also applies to gender identity. While the first question likely goes away along with the Obama-era guidance, the second remains, if justices still want to field it.

The U.S. Justice Department, led by new Attorney General Jeff Sessions, said the matter is best left to “Congress, state legislatures, and local governments,” shrouding the federal argument in a case for states’ rights. And at the White House on Thursday, press secretary Sean Spicer pointed out that a federal judge in Texas last year enjoined the guidance so it never fully took effect. Spicer also asserted, “There’s nobody who’s possibly suggesting” that the 1972 law contemplated protection of transgender students at the time. That view is shared by a series of mostly conservative groups, which have weighed in with Supreme Court briefs opposing an expansive reading of sex discrimination.

The Alliance Defending Freedom, one such nonprofit, defended the approach by the Gloucester School Board that allowed transgender students to, among other things, use separate, individual facilities to change clothes and shower. The Alliance said school boards enjoy great freedom to develop education policies for their own communities. Civil rights lawyers said that’s just wrong. The federal government, they argue, has long led the way when it comes to integrating schools, easing access to the polls, and other critical civil rights issues.

What’s more, Block at the ACLU said, his client Gavin Grimm has obtained an amended birth certificate stating that he’s male. If Grimm moves to a state like North Carolina, where the law defines sex by what’s on a birth certificate, schools there would allow him to use the boy’s room. But Gloucester County, Va., has adopted a different approach, excluding Grimm from the boy’s room and requiring him to use a single-user restroom.

“The fact is that no child in America should have their rights subject to their ZIP code,” said Eliza Byard of the Gay Lesbian & Straight Education Network, or GLSEN. Advocates for the LGBT community say that a half-dozen courts across the nation already have adopted their approach finding that longstanding protections against sex discrimination under federal law extend to transgender people. The U.S. Courts of Appeals in the Sixth and Seventh Circuits have sided with transgender students and denied attempts to halt or stay the cases while they move toward appeal, ACLU lawyers said.

“Honestly, I’ll just tell you, nobody wants to be on the business end of a transgender lawsuit these days,” said Mara Keisling, executive director of the National Center for Transgender Equality. “The courts have been moving in our direction very quickly.”

Nearly two years ago, a divided Supreme Court ruled 5-to-4 that same-sex couples have a fundamental right to marry under the due process clause and the equal protection clause. President Trump told an interviewer this year that is “settled law.”

But legal arguments about whether protections against sex discrimination in Title IX and other federal laws extend to gender identity, central to the lives of transgender people, are still very much active in the courts. For instance, Lambda Legal, a nonprofit that advocates and litigates for LGBT clients, said court decisions are imminent in two of its cases that “could change the national landscape of employment law for LGBT people.”

“It’s not just about bathrooms, it’s about being a full, participating member of society,” said Demoya Gordon, a Transgender Rights Project attorney at Lambda Legal. In one case, a math teacher, who is a lesbian, separated from her job in South Bend, Ind., because of her sexual orientation. Lambda is arguing that sexual orientation discrimination against its client, Kimberly Hively, “is a form of sex discrimination” barred under Title VII of the 1964 Civil Rights Act.

The organization is making the same argument before the 11th Circuit Court of Appeals. There, a security guard sued her employer for harassment and for allegedly forcing her out of a job at Georgia Regional Hospital because she’s lesbian and “gender-nonconforming.”

All-in on Justice’s vision for West Virginia

On Dec. 21, Gov. Jim Justice announced that I would be his Cabinet Secretary for the state Department of Military Affairs and Public Safety. From that point on, I, like other Cabinet members, have been working every day to do what is right for West Virginia. I have personally devoted an average of 71 hours per week to respond to the governor s marching orders. Those orders are clear: with the state facing desperate times, its leaders needed to come forward and work together to make West Virginia proud. I spent from Dec. 21 to Inauguration Day mapping out a plan to make Military Affairs and Public Safety more efficient. The chief of staff approved this proposed reorganization on Jan. 27. Initially, these changes will reduce Military Affairs and Public Safety from 13 agencies to nine. My plan will unite Homeland Security State Administrative Agency, the Division of Homeland Security and Emergency Management, and the West Virginia Intelligence Fusion Center under a single West Virginia Homeland Security entity.

As a next step, a new Division of Corrections Operations will absorb the Regional Jail and Corrections Facility Authority and the divisions of Corrections and Juvenile Services. As this will require legislation, this major change will take additional time. So far, no delegate or senator I have spoken to has raised any concerns. Legislators have instead told me that these changes are long overdue. My reorganization plan also focuses on rented real estate. An initial review shows that Military Affairs and Public Safety pays $1.2 million each year just for administrative offices. I envision a single headquarters for all of Military Affairs and Public Safety, except for the West Virginia State Police, with shared staff and such common office space as conference rooms. This will reduce space and costs. I was on hand to applaud Gov. Justice s State of the State Address, and I support his proposed budget. I hope that in West Virginia, all parties come together and vote to approve it. It is the right thing to do based on a detailed evaluation of the state s financial situation.

I have never been accused of being a yes man. With a degree in accounting and certified as a fraud examiner, I would directly tell the governor and his staff if I did not support the proposed budget. However, I believe in and support the governor s approach to solve the state s financial problems. Our legislators have worked hard over the past three years. They have cut and reduced our state s budget by millions of dollars. In his budget, the governor proposes $26.6 million in responsible cuts. The issue at hand now is: will further cuts affect the function of our government? The answer is not difficult to see after just a month in Charleston. Here are some examples from within Military Affairs and Public Safety:

Citizens across West Virginia are afraid they could lose their local State Police detachments to additional cuts. Previous spending reductions have already forced the State Police to eliminate more than 50 vacant trooper positions. The State Police do not have the funding to train a new trooper cadet class.

The West Virginia National Guard and our Emergency Management team saved lives and delivered immediate relief after last year s devastating flooding. Further cuts could threaten the state s disaster response and weaken ongoing efforts to prepare and lessen the impact of such events. I talked to a state employee that has worked for the State of West Virginia for 19 years. He handles millions of dollars in federal grants. He is making $26,000 per year, has not received a pay raise in over a decade, and his counterparts in surrounding states make 2 to 3 times more. A correctional officer called me crying that it embarrasses him and his family to go to a grocery store and pay with food stamps. The officer never dreamed that he would work full-time and qualify for food stamps and would need them.

Cutting over $450 million in spending may balance the budget, but the damage to state government would take years to recover from. As for the proposed revenue enhancements, I believe we need to look at the end result proposed by the governor: these measures will allow West Virginia to eliminate the state s personal income tax. I m from Wood County. I know that it has hundreds of retirees, from teachers to corporate executives, who have purchased homes in Florida. They live there six months and one day to avoid West Virginia s state income tax. Most of these men and women love West Virginia, and moved to Florida strictly as a real estate investment and to avoid paying West Virginia personal income taxes.

We have so much to offer in West Virginia. Our state should be seen as a place where people can work, live, and then retire income tax-free to enjoy West Virginia s beauty. This theory works in at least eight states: Florida; Nevada; New Hampshire; South Dakota; Tennessee; Texas; Washington; and Wyoming. The governor has provided a long-range plan, not a short-term fix. Once it is implemented, imagine the growth as people relocate to West Virginia to live. These people will need all of life s basic living needs, from groceries to health care. That means that West Virginia must focus on quality roads, bridges, sewage treatment facilities, and education; on keeping the crime rate low; and on developing venues attractive to citizens from children to retirees. We must look past a one-year budget, and instead focus on where we want to be in eight years.

Was security guard in "Pokemon Go" killing allowed to be armed? Depends on whom you ask.

CHESAPEAKE

Despite the many details that have emerged since 60-year-old Jiansheng Chen was shot and killed by a security guard last month, one remains unclear. Was the guard allowed to carry a gun that night, or not? Representatives for the River Walk Community Association and the Chesapeake-based company hired to patrol the River Walk neighborhood where Chen s family say he was shot while playing Pokemon Go tell different stories.

The association says its contract called specifically for unarmed guards, while the company says it allowed for guns. Both repeatedly declined to provide a copy to The Pilot. Johnathan Cromwell of Virginia Beach has been charged with second-degree murder and use of a firearm in the Jan. 26 killing. His attorney, Emily Munn, said in an email she had not seen the contract but her client absolutely believed he was allowed to carry a weapon as part of his employment.

Since November, Cromwell has worked for Citywide Protection Services, which the community association hired to patrol common areas a boat ramp and the clubhouse near where the shooting took place. The association s board immediately said and still insists that its contract, signed in 2010 with no modifications or alterations since, contains a specific section calling for unarmed and uniformed security. The contract was suspended after the shooting. But Andrew Sacks, an attorney for Citywide, maintained Monday there s no doubt guards were allowed to carry arms under the contract.

I can t be more emphatic. (The contract) clearly includes a provision for armed services, he said. It gives the company the discretion for what they deem is necessary under the circumstances.

Sacks also said Monday that Cromwell is still a company employee. He is registered with the Virginia Department of Criminal Justice Services as an armed and unarmed security officer, according to the department s online database, and endorsed for using a handgun and shotgun. Virginia is one of a handful of states that give private security guards officers under state code the power to arrest citizens. An unarmed guard must complete 18 hours of training within 90 days of hire at a security company. An additional up to 35 hours is required for armed guards, who have arrest powers.

Daitwan Hardy, CEO of Security Contracting, a North Carolina-based company with an office in Chesapeake, said in the private security world, all the details are contract- and site-specific.

It all depends on the contract itself, he said. Hardy said it would be a waste of money to send an armed guard to an area that calls for unarmed security, as it costs a lot more. Security Contracting rarely does that for new hires. Low-income neighborhoods often prefer armed guards, while wealthier ones tend to ask for unarmed, he said.

It s illegal in Virginia for a guard hired for an unarmed site to show up with a firearm, even if coming from an armed site. Justin Moss, president of Talon Security Services in Chesapeake, said that includes having a gun in the car.

You cannot have access to a firearm while there, he said. It can t be on site at all. But it happens, he said: Not all companies are vigilant about checking their guards practices, and not all guards find time to make a stop in between sites. Christopher Zombar, Talon s vice president, said he prefers his officers work through the ranks, starting as unarmed and working their way to being armed supervisors.

There s usually something in their background before we let them just put a weapon on, Moss said. He added that he thinks River Walk would be a difficult place to patrol because of its size and makeup, which includes a variety of adjacent communities and not that many common areas.

Zach Mitcher, who grew up in River Walk, said he remembers seeing armed guards there for as long as he can remember. He said the guards often chased teenagers away from late-night hangouts at the community boat ramp.

I always thought they were supposed to be armed, Mitcher said. They weren t trying to hide it. On Jan. 26 around 11 p.m., Chen, who lived about a half-mile away, pulled his van into the driveway of the River Walk clubhouse, according to Commonwealth s Attorney Nancy Parr. Cromwell confronted Chen by stopping his car directly in front of Chen s van, and Chen backed up and turned around, Parr said in a news release.

Cromwell exited his car and said stop before he fired, according to the release. Chen was shot five times: four times in the upper left chest and once in the upper left arm. The company continues to believe Cromwell shot in self-defense, Sacks said Monday. Parr declined to discuss whether Cromwell was allowed to be armed or other details of the case, citing the Virginia State Bar s rules of professional conduct.

This case will be tried in the courtroom and not in the media, Parr wrote in an email. All parties will receive a fair and impartial trial.

A bond hearing is set for Thursday and preliminary hearing for April 26.