BY JAY KAPLAN
Updated Feb. 27:
Shameful. Political pandering. Heartless. Cowardly. A terrible message to send to some of our most vulnerable youth.
All of these are appropriate responses to the Trump Administration’s decision Feb. 22 to rescind guidance to public schools regarding the fair and equal treatment of transgender students.
The guidance, promulgated by the Departments of Justice and Education last year during the Obama Administration, makes clear that transgender students are to afforded the same dignity as cisgender students and are permitted to participated in school activities in accordance with their gender identity, including using restroom facilities. In explaining its decision to revoke these protections, the Trump Administration claimed that Obama Administration guidance created confusion in public school districts and that this was a matter best left to the States.
So now, I would now like to add the word “disingenuous” to the list of characterizations of Trump’s decision.
Far from providing confusion, the Obama Administration provided clarity to public school districts that transgender students are protected under Title IX, which prohibits discrimination on the basis of sex, including gender stereotyping. This conclusion is consistent with numerous federal court and agency decisions that when a transgender person is discriminated against due to his or her failure to conform to gender stereotyping, that this constitutes sex discrimination. In other words, transgender people are targeted for discrimination in employment, housing, education, and public accommodations because they are considered to be gender non-conforming.
Federal courts throughout the country have interpreted our civil rights laws this way, and courts in Colorado, Wisconsin, Ohio, Virginia, Illinois and Minnesota have held that transgender students have the right to use facilities in accordance with their gender identity. Along with sending a message that it’s OK to discriminate against and diminish our transgender youth, the Trump Administration has created confusion by offering a position that is inconsistent with federal legal precedent.
But make no mistake: The meaning of Title IX cannot be changed by the Trump Administration and its revocation of the guidance, nor by the current position of the Secretary of Education Betsy DeVos (who capitulated to the Trump Administration’s insistence on rescission). School districts can and must protect all students from discrimination, including transgender students. Barring transgender students from single-sex spaces, consistent with the gender the student lives every day is not consistent with a district’s obligations under Title IX and the Constitution. If the Department of Education will no longer act, the ACLU will.
Yes, the Trump Administration has indeed sent a terrible message to vulnerable transgender students – that they are not welcome in their schools as they are. But the law and the Constitution has not changed – which means we will continue to fight any efforts to undermine transgender students’ rights to a fair, safe and supportive learning environment.
It’s important to note that far from causing confusion or overreaching (as Betsy DeVos said), the guidelines were consistent with a line of federal case law precedent interpreting Title IX as covering transgender students and protecting them from discrimination, including use of facilities. And of course, the time-worn saying that this is a “states rights issue” is the same argument that was used not to get involved in other civil rights issues, such as racial discrimination. The federal government has chosen to punt, and given the conservative stronghold in the state of Michigan, it is highly unlikely that legislative leaders in Michigan will do the right thing on this issue anytime soon.
Many of you have seen the media coverage regarding the Trump Administration’s plans to rescind guidance issued last year by the U.S Departments of Education and Justice addressing how Title IX protects transgender students and permits them to participate in school activities and programs, in accordance with their gender identity. While at this writing, the Trump Administration has not officially announced it rescission, should it do so, this would be a shameful move by the administration that sends a terrible message to trans students. However, this guidance does NOT undo legal protections for trans students. They are protected by the U.S. Constitution and Title IX’s discrimination on the basis of sex, including when using single-sex restroom facilities.
If the rescission does occur, the Trump Administration has now made it clear that they will not protect the rights of the LGBT community, particularly LGBT youth, as evident by their decision to remove guidance regarding transgender students that was issued by the Obama Administration. Actions speak louder than words and this action is clear. It is important to keep in mind that even with this revocation of guidance, the federal law has not changed and school districts must still comply with the law. This means that schools that have protected the rights of transgender students should continue to do so and schools that have discriminated against transgender students still face liability in courts.
This is why the Supreme Court’s decision later this year in Gavin Grimm’s case is more important than ever to make clear that trans youth are protected. Throughout the country, more and more people do not want further restrictions on using single-sex facilities. There has been widespread social and economic backlash against lawmakers, such as in North Carolina, who want to discriminate against the transgender community by blocking their access to fully participate in public life. The Trump Administration should not be adopting a fringe ideology that is harmful to our communities and our schools.
If this impending revocation does happen, there are understandably questions regarding what this means for transgender students and public schools. Answers to those questions are as follows.
What weight does this change in position carry?
The meaning of Title IX cannot be changed by the Department of Education, and neither the revocation of the guidance nor ED’s new position alters the substantive protections of the federal statute. But of course, the change in position does send a terrible message to vulnerable transgender students that they are not welcome in their schools as the people that they are — and we know that to have devastating educational and psychological effects.
What does the change in position mean for school districts?
School districts can and must continue to protect all students from discrimination including transgender students. Barring transgender students from single-sex spaces and activities consistent with the gender the student lives every day is not consistent with a district’s obligations under Title IX and the Constitution. They may not be subjected to OCR investigations by the new administration but they will risk lawsuits by trans students if those students are barred from common restrooms that match who they are.
Is the Gloucester County School Board v. G.G. case moot?
No. When the Supreme Court granted certiorari (took the case), it decided to review two questions. Though the first question (how much deference to give the Department of Educations’ interpretation of Title IX) could be mooted in light of the new position, the second question is about the substantive meaning of Title IX with respect to transgender individuals and restrooms — that question is not mooted by any action taken by the Trump administration.
Since the 4th circuit relied on ED’s guidance, does the current position hurt our chances of prevailing?
No. The Supreme Court is considering the question of the meaning of Title IX independent of any administration’s interpretation of the law. The Fourth Circuit deferred to ED’s interpretation of Title IX because that interpretation was reasonable and consistent with the statute. Indeed, it is the only reasonable interpretation of Title IX and the law’s implementing regulations that does not undermine the statute’s central purpose of ensuring educational opportunities to all.
What does the change in position mean for states considering passing anti-transgender legislation?
States are still subject to Title IX and the U.S. Constitution. Anti-transgender legislation like North Carolina’s HB2 violates both. Not only will states risk the loss of business, sports and job opportunities that North Carolina lost if they pass anti-trans laws, they will also be subject to lawsuits for violating Title IX and other federal laws, as well as the Constitution.