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April 20th, 2016:

Federal appeals court sides with transgender teen in bathroom case

This could be big.

A federal appeals court in Richmond has sided with a transgender high school student, saying that he can proceed with his lawsuit arguing that his school board’s decision to ban him from the boys’ bathroom is discriminatory.

In backing high school junior Gavin Grimm, the U.S. Court of Appeals for the 4th Circuit deferred to the U.S. Education Department’s interpretation of policies that give transgender students access to the bathrooms that match their gender identities rather than their biological sex. The federal department has said that denying transgender students access to the school bathrooms of their choice is a violation of Title IX, which prohibits gender discrimination at schools that receive federal funding.

“It’s a complete vindication for the education department’s interpretation of Title IX,” said Joshua Block, an attorney with the American Civil Liberties Union who represents Grimm.

In a 2-to-1 decision, the 4th Circuit reversed a lower court ruling, saying that court had used the wrong legal standard in denying the student a preliminary injunction that would have allowed him to use the boys’ bathroom at his high school in Gloucester County, Va. Judge Henry Floyd, who wrote the majority opinion, also ruled that the boy’s discrimination lawsuit could move forward. The appeals court remanded the case to the lower court to be reheard.

The 4th Circuit is the highest court to weigh in on the question of whether bathroom restrictions constitute sex discrimination, and the decision could have widespread implications on how the courts interpret the issue as civil rights activists and local politicians battle over school bathrooms.

“The Department’s interpretation resolves ambiguity by providing that in the case of a transgender individual using a sex-segregated facility, the individual’s sex as male or female is to be generally determined by reference to the student’s gender identity,” the court wrote.

[…]

The decision’s legal implications are far broader than just Grimm’s case, as it could shape other court battles, including one in North Carolina, where a transgender university student and employee already have sued to overturn the new law there. Other judges outside the 4th Circuit, which includes North Carolina, could look to the court’s ruling in future legal fights because it is the highest court so far to weigh in on the legality of bathroom restrictions for transgender students.

The Obama administration has taken the position that such restrictions for students are a violation of Title IX, and officials in Washington have warned school districts that they risk losing federal funding if they fail to accommodate transgender students. Following a civil rights complaint, the U.S. Education Department found that an Illinois school district violated Title IX when it barred a transgender girl from a girls’ locker room.

But lower-court rulings have gone against the Obama administration’s position, including in Grimm’s case, when a district judge ruled that Title IX protects students from discrimination based on biological sex, not gender identity.

There are a lot of caveats to this story, beginning with this:

Judge Floyd’s opinion does contain some language that could create trouble for trans equality in the future, especially if a new president who opposes LGBT rights is elected. Though the Obama administration reads the regulation at issue in this case in a way that promotes trans rights, the regulation itself, Floyd writes, “is silent as to how a school should determine whether a transgender individual is a male or female for the purpose of access to sex-segregated restrooms.” Thus, his opinion concludes that “the regulation is susceptible to more than one plausible reading because it permits both the Board’s reading— determining maleness or femaleness with reference exclusively to genitalia—and the Department’s interpretation—determining maleness or femaleness with reference to gender identity.”

For the time being, this conclusion that the regulation is ambiguous is good news for trans individuals seeking access to the appropriate restroom, because Supreme Court precedents also call on federal courts to defer to agencies in cases such as this one. As Floyd writes, the Supreme Court’s decision in Auer v. Robbins “requires that an agency’s interpretation of its own ambiguous regulation be given controlling weight unless the interpretation is plainly erroneous or inconsistent with the regulation or statute.” Nevertheless, a new administration could rewrite the underlying regulation, if it chose to, and Floyd’s opinion does little to prevent such a rewrite from relegating trans students to a bathroom that does not correspond with their gender identity.

So long as Barack Obama — or a similarly-minded president — sits in the White House, however, Judge Floyd’s reasoning will protect trans students who are impacted by discriminatory policies governing which bathroom they may use. Floyd’s opinion was joined by Judge Andre Davis, also an Obama appointee. Judge Paul Niemeyer, a Bush I appointee, dissented from the relevant parts of Floyd’s opinion.

It’s one appellate court, and this ruling – which sent the original lawsuit back to district court – only affects states in the Fourth Circuit. Other appeals courts may rule differently, and of course this will eventually end up before SCOTUS, where who knows what will happen. So the future and the timeline are both uncertain, but the direction is right. If it acts as a deterrent to even one city or state that contemplates a similar bathroom ordinance or law, so much the better. Daily Kos has more.

On drainage and flooding

Two items of interest from Gray Matters, both on the subject of the week. First, from Cynthia Hand Neely and Ed Browne of Residents Against Flooding:

Man-made, preventable flooding has surged dirty, sewage-ridden water through Houston living rooms three times now in seven years, yet city government fails to prevent these recurring emergencies.

Really? If losing homes, livelihoods, retirement savings, health and sanity (and at least one life) aren’t reasons enough to make emergency detention and drainage improvements, what in the world does it take?

Right now, too many real-estate developments do not detain storm water run-off from their new construction, and instead allow it to flow downstream into other neighborhoods, into people’s homes. This new development is responsible for unnecessary flooding of neighborhoods that previously weren’t flood plains, weren’t prone to flooding. That new development is also responsible for flood insurance rising 100 to 200 percent (before the Tax Day flood) in these non-flood plains.

City government is allowing this to happen. Developers use loopholes and grandfathering to avoid doing what the city’s laws require them to do. Is it ethical to allow a new office building to flood an entire neighborhood even if a loophole makes it legal?

And two, from Bruce Nichols:

We can live without zoning. We’ve proved that. What we cannot live without, especially in a no-zoning environment, is sufficient regulation and administrative municipal clout to make sure commercial development is done in a way that doesn’t harm its neighbors.

Politicians and bureaucrats excuse themselves for repeated flooding, blaming flat terrain, tropical rain and semi-permeable soil. This amounts to hiding behind Mother Nature’s skirts in a city with a tradition of overcoming natural challenges — digging a ship channel to the Gulf, putting a man on the moon, building the Astrodome and finding oil in impossible places.

Commercial developers are able to summon the technical imagination and political will to get the water off their property. Why can’t the city — why can’t we — do more to keep developers from dumping their excess runoff into our homes?

While homeowners spend their time making a living and raising families, the city’s developers, engineers, contractors and their hired minions lobby — and fund campaigns — to keep city development rules weak. We need a leading developer to recognize his or her enlightened self-interest in protecting neighborhoods that house the people who shop and work in developer-built malls and office buildings.

There have been feints in the direction of improvement. Houston in recent years enacted rules that, to the casual reader, require developers to create detention basins to keep from flooding their neighbors. But there are loopholes that developer lawyers use to avoid doing so. They can cite previous development of a plot to get it “grandfathered,” exempting it from detention requirements.

These loopholes offends common sense. If we really want to master our special Gulf Coast environment and topography, if we really want to have meaningful flood prevention, we should require detention under all commercial developments and redevelopments, even if the plot were previously paved over completely.

Why is this essay more focused on detention than on bigger pipes and ditches, although we need them, too? It is because our bayou-based drainage system is overtaxed. The U.S. Corps of Engineers and Harris County Flood Control District say flow rates into Buffalo Bayou are maxed out. The bayou cannot accept runoff any faster than it already does. That doesn’t mean it can’t accept more water over time. It can. But detention is needed to slow the rate of discharge and allow more time for the bayou to drain.

I don’t agree with everything said in these two articles, but I’m sure we can all agree that this is a problem and it needs to be addressed right away. What I would add to this discussion is that it’s not just a Houston problem. It’s very much also a Harris County problem, because an awful lot of formerly permeable grasslands and prairie have been paved over and developed into houses, shopping malls, parking lots, and our ever-expanding toll road network. What used to be absorbed is now runoff, and like everything else it flows downriver, which is to say in the direction of our fair city. We can enforce all of Houston’s ordinances to the letter, and we’re still going to have a problem thanks to the last 20 or 30 years of growth and development. What are we going to do about that?

Lone Star Rail: Not dead yet

Just a flesh wound, actually.

The decision by Union Pacific to end its working relationship with Lone Star Rail District (LSRD) in February, was a blow in efforts to develop a passenger rail line between San Antonio and Austin.

But in a special meeting Friday in San Marcos, district directors reaffirmed their commitment to find a solution to growing traffic congestion along the Interstate 35 corridor.

The district’s board of directors voted 12-1, and asked the organization to continue its current Environmental Impact Study process, and ensure that the process includes all alternative options.

[…]

LSRD board members, in a special meeting, went over the progress of the district’s environmental impact process and current list of options. The district did pause work on the alternative involving UP, and moved onto focusing on exploring other options.

Many board members said Union Pacific’s choice to stop working with Lone Star Rail was disappointing, but that they hoped the company would return. The completion of the impact study is crucial to the project, because it would enable future funding, including federal money. The district expects to finish the environmental impact process by 2018.

John Rinard, senior programs director at Parsons Corp., an international construction and engineering organization, told the board that Union Pacific has a history of taking part in large-scale transit projects elsewhere in the country only to step back or withdraw altogether. In some cases, UP would return to a project.

“What you’re experiencing is not unique in the business world,” Rinard said, adding that rail companies such as UP are often concerned about project factors such as liabilities.

[…]

Rinard suggested that the Lone Star board, which includes several elected city and county leaders from all along the I-35 corridor, assert its political will and press forward with its goal of passenger rail.

“I wouldn’t say stop,” he said. “I cannot see them walking away from the project permanently. It’s a fantastic project. It has all the good points.”

Other alternatives being evaluated by LSRD include using the State Highway 130 corridor, the abandoned MoKan rail alignment, and new right-of-way parallel to the Union Pacific mainline, as well as hybrids of these options.

See here for the background. I have no idea how badly UP’s pullout affects the long-term likelihood of this project, but it can’t be good. I have always believed the concept has merit, but if they can’t use existing tracks, the price tag may well be too high. We’ll see if the governments that had been involved in this so far remain on board or not. The Statesman and the Current have more.

How you can help or get help in Houston

Via email from State Rep. Gene Wu:

I hope this email finds you safe after yesterday’s flooding. While we are seeing most of the high water receding from our neighborhoods, there is still a good deal of cleanup work to do today. Please stay safe as we anticipate even more rain throughout the day.

For those of you able to help your fellow Houstonians, you are always encouraged to donate to the Red Cross.

The Red Cross is also seeking volunteers who are available to commit 6-8 hours to assist at Houston-area shelters. There are different roles volunteers can play during a shelter operation:

  • provide immediate emergency services to individuals and families
  • greet families and provide comfort as they arrive.
  • provide meals, comfort kits, etc.
  • help oversee shelter operations.
  • entertain families.
  • assist in overnight security.

Other volunteer opportunities are available as well. To volunteer, contact the Red Cross at 713.313.5491.

Shelters in the Greater Houston area are located at:

Shelter                         Address
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Chinese Community Center        9800 Town Park Drive
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Johnston Middle School          10410 Manhattan Dr.
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Willow Meadows Baptist Church   4300 W Bellfort Blvd
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MO Campbell Education Center    1865 Aldine Bender
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Jersey Village Baptist Church   16518 Jersey Drive (Jersey Village)
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South County Community Ctr      2235 Lake Robbins Rd. (Spring)
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Pine Island Baptist Church      36573 Brumlow Road (Hempstead)
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Knights of Columbus Hall        1390 Highway 90 W (Sealy)
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First United Methodist Church   4308 W. Davis Street (Conroe)
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Royal High School               2550 Durkin Road (Pattison)
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East Montgomery County          21679 McClesky (New Caney)
Community Center
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As a reminder, here are some helpful links and phone numbers in case they are needed:

 

Thanks and stay safe!

From Sen. Rodney Ellis:

As our community continues to deal with flooding, please keep in mind these important tips to stay safe:
  1. Follow evacuation orders and do not attempt to return until officials say it is safe to do so.
  2. Head for higher ground and stay there.
  3. Stay away from floodwaters. If you come upon a flowing stream where water is above your ankles, stop, turn around and go another way.
  4. Turn around, don’t drown. If driving, turn around and go another way. If you are caught on a flooded road and waters are rising rapidly around you, get out of the car quickly and move to higher ground. Most cars can be swept away by less than two feet of moving water.
  5. Keep children out of the water.
  6. Be especially cautious at night when it’s harder to see flood danger.
Area services
These services will help you as you begin to recover from the flood’s impact.
  1. Report flooding: the City of Houston Office of Emergency Management is asking any residents who experienced flooding inside their home or business to report it to the Houston 311 Help & Information Line by calling 311 orsubmitting the report online here.
  2. Legal assistance: the State Bar of Texas offers a legal hotline to help connect people with legal aid providers following disasters: 1-800-504-7030. Additional resources are available at texasbar.com/disasters and texaslawhelp.org.
  3. Abandoned car: if your car was towed during the flood, call 713-308-8580 or visit findmytowedcar.com to determine where it is currently located.
  4. No power or downed power lines: please report a power outage or downed power lines to CenterPoint Energy at 713-207-2222.
  5. Food: if you need food or water, please contact the Houston Food Bank at 832-369-9390.
  6. Free storage: U-Haul is offering 30 days of free storage and U-Box container usage to flood victims. Call one of the Houston offices for more details: U-Haul of East Houston 281-377-3380; U-Haul of West Houston 281-495-6683; U-Haul of Gulf Coast Texas 713-750-7701; U-Haul Storage Centers of Houston 281-531-4022

And from CM Greg Travis:

1. Report Flooding to 311:
Please report all flooding to 311. As you have no doubt heard, the ReBuild Houston program is “worst first,” meaning the areas with the greatest flooding will receive reconstruction prior to areas with less severe flooding. Self-reported 311 information is the main data point going into the SWEET (Storm Water Enhanced Evaluation Technique), which aids in prioritizing drainage projects. It is vitally important that everyone who experienced structural flooding (flooding inside their home or business) report it to 311.
There are four ways to make reports to 311:
Phone: 713-837-0311 (or 3-1-1)
Smartphone: download the mobile app from the site above (or from the Apple App site or the Google Play site) and use it to report matters directly to the City of Houston
If you are reporting flooding online please select “Traffic, Streets, and Drainage,” then select “Report Flooding” from the “Maintenance & Repairs” menu. If you experienced flooding on a prior date you did not report (for instance, May 2015 or October 2015), you may also use this same process to report the prior flooding event.
If you have pictures of the flooding you wish to submit, you may report flooding by email and attach pictures, or once you have received the service request number for your report, you may email 311 the number with your pictures and ask to have the pictures attached to your flooding report.
2. Flood Recovery Information:
For flood recovery information, please visit http://www.houstonemergency.org/go/doc/2263/2620898
Currently, this site only has flood recovery information from May 2015 and October 2015, but the city is in the process of updating the information. This site will contain information about flood mitigation assistance, hazard mitigation grants, repairing flood damage if you live in a floodplain, making a flood insurance claim, and other important information to get you and your family back on your feet.
3. City of Houston Trash Pick-Up:
There was no City of Houston trash pick-up yesterday due to the floods. For information regarding the pick-up schedule for the rest of the week, please visit http://www.houstontx.gov/solidwaste/press-04182016.html
If you have questions about City of Houston trash pick-up, please contact one of the following Solid Waste Department representatives during normal business hours:
Irma Reyes
Tyra Wilkins
4. Information Regarding Late Filing of Your Federal Income Tax Return:
Yesterday was the deadline to file your federal income tax return. If you were not able to file due to flooding, and you did not timely request an extension, you will find information to assist you here: https://www.irs.gov/uac/Newsroom/Houston-Area-Taxpayers-Affected-by-Severe-Weather-May-Qualify-for-Relief-from-Penalties-on-Late-Tax-Returns
5. Find your Towed Vehicle:
If you were forced to abandon your vehicle on a public roadway and it was towed, you will find information regarding the location of your towed vehicle here: http://findmytowedcar.com/tvrmscitizen/mainpage.aspx
6. Utility Outages:
CenterPoint Energy crews have been working since the storm began Sunday night to restore service to affected customers. Overall, an estimated 170,000 customers have been impacted with a peak of approximately 120,000. The most heavily impacted areas are Cypress, Greenspoint, Humble and Spring Branch. As of 2:30 p.m. yesterday, approximately 45,000 customers remain without power. CenterPoint will be bringing an additional 30 crews from neighboring utilities and their contractors to assist in the most heavily impacted areas.

CenterPoint crews are having difficulty making it through floodwaters, which is slowing power restoration efforts. Customers should be prepared for extended outages, particularly in some of the harder-hit areas. Estimates of when power will be restored will also be delayed.

Safety is CenterPoint Energy’s No. 1 priority, and the company has provided these important electric and natural gas safety tips:
Electric:
  • Stay away from downed power lines. Be especially mindful of downed lines that could be hidden in floodwaters, and treat all downed lines as if they are energized.
  •  If you experience flooding and water has risen above the electrical outlets in your home, contact a licensed electrician before turning on the main circuit breaker or trying to restore power.
  •  All electrical appliances and electronic equipment that have been submerged in water need to dry thoroughly for at least one week. Then, have them checked by a qualified repair person before turning them on. Attempting to repair a flood-damaged appliance could result in electrical shock or death. Attempting to restart it could result in further damage and costly repairs.
  •  If the outside unit of an air conditioning system has been under water, mud and water may have accumulated in the controls. Have the unit checked by a qualified air conditioning technician.
  Natural Gas:
  • Do not turn off your natural gas service at the meter; doing so could allow water to enter the natural gas lines.
  •  Be alert for the smell of natural gas. If you smell gas, leave the area immediately and tell others to leave, too.
  •  If you smell gas, do not turn the lights on or off, smoke, strike a match, use a cell phone or operate anything that might cause a spark, including a flashlight or a generator.
  • Do not attempt to turn natural gas valves on or off. Once safely away from the area, call 888-876-5786, and CenterPoint Energy will send a trained service technician.
  • If your home was flooded, call a licensed plumber or gas appliance technician to inspect your appliances and gas piping to make sure they are in good operating condition before calling CenterPoint Energy to reconnect service. This includes outdoor gas appliances including pool heaters, gas grills and gas lights.
  • Before conducting debris cleanup, or to locate underground natural gas lines and other underground utility lines before digging on property, call 811 – the nationwide Call Before You Dig number.
  • Be aware of where your natural gas meter is located. As debris is put out for heavy trash pickup, make sure it is placed away from the meter. In many areas the meter may be near the curb. If debris is near a gas meter, the mechanized equipment used by trash collectors could pull up the meter, damaging it and causing a potentially hazardous situation. If this happens, leave the area immediately and call CenterPoint Energy at 888-876-5786.
 For the latest information on power outages:
The District G office will provide additional information as it becomes available.  Above all, please stay safe.

See here and here for more from the Red Cross. There’s a reason why I don’t unsubscribe to the zillions of email lists I manage to get onto. Times of crisis are always good times to give blood as well – go to the Gulf Coast Regional Blood Center to arrange for a donation. Remember that the general rule is that it’s better to give money to a charitable organization than stuff unless they are specifically asking for stuff. Don’t buy canned goods and bring them to the food bank. They can get those canned good more cheaply than you, so give them the money you would have spent.

HISD schools were closed yesterday but at last report were to be open today, while city and county offices reopened and Metro resumed service yesterday. Some other school districts remain closed. There’s still rain in the forecast through tomorrow though nothing like Monday, so there’s still a risk of flooding. Hopefully that won’t happen, but be prepared and stay off the roads as much as possible.