Trump's DOJ Wants All Federal Funds Recipients to Implement Bathroom Bans. That's Easier Said Than Done.

Breaking down the new DOJ memo and its implications.

There’s a storm brewing in Democratic-led states. Just this morning, news broke that 16 states and DC announced they were suing the Trump administration over its threats to hospitals that provide gender-affirming care to those under 19. They join Colorado, Minnesota, Oregon, and Washington in challenging Executive Order 14187, and considering that the order was already blocked for the other four states and that this lawsuit was filed in the US District Court for the District of Massachusetts—which only has judges appointed by Democratic presidents—it’s likely an injunction covering all these states will be issued in the near future.

But that’s not the only trans-related court showdown the Trump administration has invited with its recent actions. Last Tuesday, the Department of Justice released a new memo titled “Guidance For Recipients of Federal Funding Regarding Unlawful Discrimination.” Mainly, it focuses on Diversity, Equity, and Inclusion programs, but a few provisions regarding trans people were snuck in. Specifically, these provisions mandate that any federally funded institutions have to adopt the federal government’s definition of ‘sex’ when it comes to bathrooms, showers, locker rooms, and dorms.

However, that isn’t the full story. So, this begs the question: is the new DOJ memo actually a bathroom ban?

Law or Order?

On Wednesday, Ivy League member Brown University announced that they had reached a deal with the Trump Administration in order to regain their federal funding. As part of this deal, Brown agreed to adopt the federal definitions for ‘male’ and ‘female’ (as stated in Executive Order 14168) when it comes to housing and bathrooms. In other words, Brown has become the first university to willingly implement a bathroom ban.

Case closed, right? Well, it isn’t so simple, because Rhode Island has laws that prohibit discrimination based on gender identity in both public accommodations and housing. In fact, Rhode Island isn’t the only state to have these laws. Here’s a map of all the states with gender identity discrimination protections for public accommodations, plus the states that have already implemented bathroom bans:

For a full list of the laws in question (and laws pertaining to other areas), see Transitics’ CATPALM Project.

All of the states in green (Arizona, California, Colorado, Connecticut, DC, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Hampshire, New Jersey, New Mexico, New York, Pennsylvania, US Virgin Islands, Vermont, Virginia, and Washington) plus Utah (though a carveout for college dorms was passed this year) also have gender identity discrimination protections when it comes to housing. These laws mean that adopting the federal definition for ‘sex’ to exclude gender identity violates state law. So by making the agreement, Brown is actually opening itself up to more problems, and these are problems it can’t get out of with the stroke of a pen.

A Minefield of Technicality

In the memo, it’s clear that the federal government is attempting to weaponise Title IX’s sex discrimination protections in order to force institutions to comply with Trump’s bigotry. This is pretty much the only way Trump can enforce his anti-trans policies in general, and when it comes to gender-affirming care for ‘minors’, it seems to have somewhat worked. In the past month, many health organisations announced that they will stop providing gender-affirming care to those under 19. Some states, like California and New York, told hospitals that stopping gender-affirming care for minors was against the law back in February, but because not being able to accept Medicare and Medicaid could threaten hospitals’ tax-exempt status, many complied anyways.

Technically, action can be brought against those that stopped gender-affirming care, but so long as they stop the procedures in question for everyone under 19, there’s no discrimination claim to be had. However, when it comes to bathrooms, showers, locker rooms, and dorms, it’s a completely different story. Take Illinois for example: in 2021, an Illinois Appeals Court ruled in Hobby Lobby v. Sommerville that defining sex as ‘immutable’ and unrelated to gender identity is a violation of the Illinois Human Rights Act. And this case, one specifically surrounding bathroom access, isn’t an isolated incident. In the 2014 Maine Supreme Judicial Court case Doe v. Regional School Unit 26, the court ruled in favour of future trans activist and actress Nicole Maines and decided that the Maine Human Rights Act protected trans peoples’ bathroom use. Clearly, the kind of ‘sex’ segregation most Republican states have implemented isn’t allowed in Democratic states.

Most crucially, compliance with Title IX is actually optional. There is no statute forcing institutions to accept federal funds. Sure, the federal government can set certain conditions, and those conditions can be challenged, but the punishment for failing to abide by federal rules is a revocation of a privilege. Conversely, compliance with state law is not optional. All entities that provide housing or public accommodations MUST adhere to state-level discrimination protections or they will face civil penalties (and will be forced to comply anyways).

And in these types of claims, action doesn’t have to be taken by the states but by any one of us who is affected by an entity adopting the federal definition of sex. Because legally, Brown and all other institutions in states with discrimination protections only really have two options here: challenge the Trump administration’s definition of sex discrimination or stop accepting federal funds altogether.

So, is the new DOJ memo a bathroom ban? Only if we stay silent.