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The Forum: Transgender Rights and the Regulatory State: Should Federal Agencies Take the Lead?

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Published on Sep 21, 2016

The NYU School of Law Forum
September 14, 2016

We generally look to acts of Congress and court rulings to establish fundamental rights—the Civil Rights Act of 1964, for example, to outlaw discrimination based on race, color, religion, sex, or national origin; and Obergefell v. Hodges, for same-sex marriage. Congress and the courts, however, have been slow to act in the broad field of LGBTQ rights, including legal protection for transgender individuals. In this as in so many other legal fields, the Obama administration has taken the lead through administrative action. Earlier this year, the Departments of Justice and Education sent a guidance letter to colleges and universities stating that Title IX prohibits discrimination based on a student’s transgender status, including in bathroom access. More than a dozen states have challenged these guidelines in federal court. Although administrative agencies have long played a leading role as innovators in anti-discrimination law, modern developments in administrative law make their actions more vulnerable to judicial defeat. At this Forum, a panel of experts will discuss the bathroom-access issue and where it fits into both the broader goals of transgender advocacy and the history of regulatory innovation in the civil rights arena.

Moderator: Deborah Malamud, AnBryce Professor of Law, NYU School of Law

Panelists:

Gabriel Arkles, Associate Teaching Professor, Northeastern University School of Law

Jacob Gersen, Professor of Law, Harvard Law School

Sophia Lee, Professor of Law and History, University of Pennsylvania Law School

Scott Skinner-Thompson, Acting Assistant Professor of Lawyering, NYU School of Law

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