States Urged to Ensure Bathroom Access for Trans Kids Under Title IX

BY CHRIS JOHNSON, WASHINGTON BLADE

With the Trump administration giving up its authority to ensure transgender kids have access to the school restroom consistent with their gender identity, a coalition of 50 advocacy groups is turning to the states to enforce federal law on the issue.
In a letter dated July 18 and sent to state education officials in all 50 states, the groups maintain Title IX of the Education Amendments of 1972, which bars discrimination on the basis of sex, prohibits schools from denying transgender kids access to the bathroom according to their gender identity.
"We are concerned," the letter says, "that the withdrawal of the Title IX guidance might lead some schools to believe that transgender students are not entitled to access bathrooms or other single-sex facilities consistent with their gender identity, or that the law or their obligations under Title IX to protect transgender students have somehow changed. That is simply not the case."
The letter — spearheaded by the D.C.-based legal group Public Justice — is signed by Lambda Legal, the National Women's Law Center and 47 other signatories that support transgender rights. Also among the signers is Anurima Bhargava, the former chief of the Educational Opportunities Section of the Justice Department's Civil Rights Division under President Obama.
It comes on the heels of U.S. Attorney General Jeff Sessions and Education Secretary Betsy DeVos revoking Obama-era guidance in February that informed schools that discriminating against transgender students, including denying access to the bathroom they think is best for them, amounts to a violation of Title IX.
Last month, the Education Department issued new Title IX rules, informing administration officials that discrimination against transgender kids in schools may in fact amount to a violation of the law, although claims of being denied to restrooms may be dismissed as a complaint.
Adele Kimmel, senior attorney for Public Justice, said in a statement even though a new political party is in control of the White House, the rules under Title IX remain the same.
"Our letter is an important reminder to schools that, regardless of whether the Trump Administration enforces it, Title IX requires that every student — including transgender students–be respected, protected and treated equally under the law," Kimmel said. "This was true before the Obama Administration issued its guidance on schools' obligations to protect transgender students. And it remains true, even though the current Administration withdrew that guidance."
The Obama administration's assertions that Title IX protected transgender students formed the basis of the U.S. Fourth Circuit Court of Appeals ruling in favor of Gavin Grimm, who as a high school student sued his Virginia school for access to the restroom consistent with his gender identity. However, courts have reached the decision Title IX assures transgender kids bathroom access consistent with their gender identity even without relying on the guidance.
It should be noted that states were an impetus to the withdrawal of the guidance under the Trump administration. Texas Attorney General Ken Paxton during the Obama administration spearheaded a lawsuit filed by 12 states against the guidance, which led to a federal judge enjoining enforcement of it. Litigation led by Nebraska Attorney General Doug Peterson on behalf of 10 more states was also filed against the guidance.
Kimmel told the Blade enforcement of Title IX for trans kids isn't about states' willingness to uphold the law, but their obligation to do so.
"Title IX and the U.S. Constitution apply to public schools in every state," Kimmel said. "Public school districts, colleges, and universities in every state must comply with Title IX and the U.S. Constitution. When they don't, they may be sued by the injured parties. They may also be sued in an enforcement action by the U.S. Departments of Justice and Education, but that's unlikely in the Trump administration."
Kimmel said Public Justice hasn't yet received any responses from states in response to the joint letter from the organizations.
The Washington Blade has placed a request with the Education Department seeking comment on the demands made to states in the letter.
Chris Minnich, executive director of the Council of Chief States School Officers, is quoted in the Associated Press as saying his organization didn't oppose Obama's guidance, but believes disputes on bathroom access for transgender students should be resolved at the local level.
"These decisions need to be made between states and school districts. It's not so much a single decision that a state can make," Minnich reportedly said. "Every kid in those schools needs to feel welcome."