FERNDALE – Local community leaders came together March 1 to discuss the ramifications of the Trump administration rescinding previous guidance from President Barack Obama on how to treat transgender kids in public schools. The panel discussion, “Know Your Title IX,” took place at Affirmations. About 80 people attended.
“We had an amazing committee that put this event together in 72 hours,” said Roz Keith, founder and director of Stand With Trans, the group that hosted the event. “So the fact that you’re all here is really just incredible and really just a testament to how much this information needs to be put out there and how much clarity we all need.”
In rescinding the Obama administrations guidance, it’s clear that Trump and his team have turned their backs on transgender students.
“First they said that what the Obama administration had done was create confusion among schools districts with regards to what should be done regarding transgender students and their participation in school,” said Jay Kaplan, staff attorney for the ACLU of Michigan LGBT Project. “I want to correct that myth. That’s absolutely untrue. Far from making things confused, what the Obama administration did with that guidance is they culled together what had happened in federal courts and what federal agencies had done with regard to Title IX, which is a law that prohibits sex discrimination in schools. And from looking at what had happened in terms of case law precedent they provided this guidance. This was in response to school districts saying they needed this guidance. So far from trying to create any confusion what they did was make it absolutely consistent with what we had seen in the law.”
While the Obama guidance was actually very broad, coverage of the issue has frequently been reduced to bathroom usage and the question of whether trans students can use the bathroom that matches their gender identity.
“The media that is covering this is solely concerned with bathroom usage,” Kaplan said. “But the guidance dealt with transgender students participating in any gender segregated activities in the public schools. That includes athletics, that includes sometimes graduation ceremonies have different uniforms for male or female students to wear, that includes things like running for prom king or queen or homecoming king or queen. The guidance was far more extensive than just being limited to the issue of the bathroom.”
The History of Title IX
So how does Title IX, a law passed in 1972 which prohibits sex discrimination, translate to protections for transgender students? Let’s look at the history of its enforcement.
“There was a case involving not a transgender person but a cis gender woman,” explained Kaplan. “Her name was Hawkins and she worked for Price Waterhouse. She was denied a promotion at her job because they said she didn’t act feminine enough. She needed to wear more makeup. She needed to wear skirts at work. She needed to be more deferential to her male colleagues. So she sued.”
Hawkins, in fact, took her case all the way to the United States Supreme Court.
“They agreed with her,” Kaplan said. “They said that the same law that prohibits sex discrimination, it also includes prohibiting gender stereotypes. In other words, if an employer has a gender stereotype about how someone is supposed to look, how they’re supposed to act or who they’re supposed to love, that constitutes sex discrimination. So that was a 1989 case. We’ve seen over time, since the year 2000, a number of federal courts that have held that when transgender people are discriminated against, and when you can show that it’s based on these gender stereotypes, that it constitutes sex discrimination and this is illegal.
“We’ve seen a number of circuit courts of appeals, federal circuit courts of appeal, the 4th Circuit Court of Appeals, the 6th Circuit Court of Appeals, which covers the state of Michigan, the 9th, the 11th, the District of Columbia … We’ve also seen federal agencies such as the Equal Employment Opportunity Commission and the Department of Health and Human Services all finding that when you’re discriminating against transgender people based on this gender stereotype that this violates non-discrimination laws pertaining to sex. So that’s where we have this basis of that.”
The “Know Your Title IX” event planning committee (left to right) Lisa Goyette, Roz Gould Keith, Char Davenport, Nicole Ellefson, and Peter Tchoryk. Photo courtesy of Stand With Trans
Back to the Future
The first guidance from the Obama administration on the matter came in 2010.
“The Department of Education during the Obama administration, looking at this case law, they then issued guidance even before last year, back in 2010,” said Kaplan. “They said that transgender students were protected under Title IX with regards to bullying. Then in 2014 they issued further guidance saying that transgender students need to be treated the same as cisgender students in school as it pertains to activities. Then, of course, we have the 2016 guidance that made it very clear that when it comes to all activities, including sex segregated activities, which includes bathroom facilities, transgender students must be allowed to participate in accordance with their gender identity.”
Now Trump has tried to undo something that legally likely cannot be undone. “It’s a shameful thing what this administration did,” Kaplan said. “It pretty much punted the issue on civil rights with regards to trans kids and pretty much gave up any responsibility. But the issue we need to keep in mind even with that guidance being removed, which no doubt is going to cause confusion with school districts, it doesn’t change Title IX and it doesn’t change how the courts have interpreted Title IX and it doesn’t change the Constitution. We have a thing in our Constitution called the equal protection clause. That says the government cannot deny equal protection to a certain group of people. And public school districts when they discriminate against certain students … and they are singling out a group of people for deferential treatment that can be challenged in the federal courts.
“Right now school districts still have that duty to adhere to Title IX, to adhere to the Constitution,” Kaplan continued. “I tell every school district, because we do get a lot of calls about this issue, I tell the school district that there is no law that prohibits them from doing the right thing. And they can do the right things and allow all students, including trans students, to access the restrooms in accordance with their gender identity.”
Panelists, in addition to Kaplan, included Stephanie White, executive director of Equality Michigan, John Austin, former president of the State Board of Education, Michelle Fecteau, Board of Education Secretary and Pete Tchoryk, the father of a transgender son.
White encouraged any parents having difficulty with a school district to reach out to her office.
“We can help sort through it, we can help figure out what your options are and we can help advocate on your behalf or the student’s behalf,” White said. “We want all lgbt people to be able to live free and equally under the law. We have a lot of laws to change yet in Michigan.
We’re not there yet. We have a long way to go. We are vigorously pursuing advancement of more and more non-discrimination laws both locally and nationally. We think one of the best ways to resist is to push forward. The best defense is a good offense.”
The State Board of Education released their own guidance on the subject of equal rights for transgender students in September 2016.
“The guidance that we developed predated Obama’s guidance,” said Austin. “It came in response to educators and the school community saying ‘what do we do to create an environment where our lgb and t kids get what they need to thrive in school and not be pushed away, so they can get educated.'”
Austin said for now that guidance is safe from being rescinded.
“The board is now unfortunately deadlocked four Democrats and four Republicans. That means they can’t do anything affirmative but they also can’t undo anything. It takes five votes to undo anything. So unless one of our Democrats goes south or goes crazy or gets bought off by Betsy DeVos or Donald Trump, the guidance will not be repealed.
“Politically people are appreciating it is a real bad position to be anti-transgender in this country and this state,” Austin continued. “Thank goodness we’re at a moment in history when history is on our side.”