By Anurima Bhargava and Adele Kimmel
The Trump Administration's attacks on the transgender community come with real consequences. Earlier this year, Attorney General Jeff Sessions said the Department of Justice no longer considers it problematic for transgender employees to be fired because of their gender identity or expression. Weeks before that, the President announced his intention to fire transgender patriots serving in our armed forces. And the Department of Education's Office for Civil Rights has now admitted it has no plans to investigate complaints from transgender students who are denied access to school facilities because of their gender identity. As advocates for students, we are alarmed.
First and foremost, we can all surely agree that every student is entitled to a safe learning environment. School officials have a legal and an ethical responsibility to create and maintain such an environment for all students. Also, parents have a right to expect that their children will be treated with dignity and respect, and be able to learn in an environment free from discrimination, bullying and harassment.
A few years ago, school districts asked for help and guidance in creating a safe learning environment for transgender students. Transgender students are far more likely than their peers to experience discrimination and harassment at school. A recent national school climate survey showed that 75 percent of transgender students felt unsafe at school simply because of their gender identity.
In response to these requests, the federal Departments of Justice and Education sent guidance to school districts across the country to explain what schools should do to ensure that transgender students are safe and supported and to summarize schools' obligations to students under federal law.
The Departments' guidance specifically set forth schools' existing obligations under Title IX — a federal law prohibiting sex discrimination in education. Courts have ruled that denying transgender students access to bathrooms, locker rooms and other sex-segregated facilities that correspond with their gender identity violates Title IX. Courts have also found that transgender students are protected from discrimination by the Equal Protection Clause of the U.S. Constitution.
Despite Title IX's broad prohibition of sex discrimination in education and the strong legal precedent established by federal courts across the country, in February of this year the Trump administration rescinded the Departments' guidance. In doing so, the Trump administration placed politics ahead of supporting schools and the well-being of students.
The result has been, at best, a confusing and misleading message to schools about their obligations under federal law to protect transgender students. At worst, the Trump administration's actions have put a target on the backs of transgender students while signaling to school officials that it's okay to discriminate against them. The Departments of Justice and Education are charged with investigating the failure of schools to live up to their obligations to protect all students. By signaling that these agencies may no longer enforce federal civil rights laws, the Trump administration is abdicating its duty to protect students who may be under attack.
In the wake of the rescission of the guidance, Public Justice, Lambda Legal and a coalition of 50 civil rights and legal advocates sent a letter to each state's Title IX coordinator with the following core message: The law has not changed. Schools continue to have a legal and ethical obligation to treat transgender students fairly and in accordance with Title IX and the Constitution. The Trump administration did not change the law by rescinding the previous administration's guidance. Instead, it took away a tool and a resource that school districts had asked for, and that explained Title IX and how it would be enforced with regard to transgender students.
Unfortunately, the withdrawal of the guidance also emboldened numerous states to introduce legislation that would limit transgender students' access to school bathrooms and locker rooms. Each of these bills is designed to prevent transgender students from using facilities that match their gender identity. Singling out transgender students for different treatment is stigmatizing and discriminatory. It also puts their safety at greater risk.
Every public school in America must continue to enforce the rights of transgender students. When schools fail to protect transgender students from discrimination and harassment — or when they deny transgender students access to bathrooms and locker rooms that match their gender identity — they are not only violating Title IX and risking being sued, they are undermining a basic principle we can all agree on. Schools must be a safe learning environment for all students.
Anurima Bhargava served as the Chief of the Educational Opportunities Section of the Civil Rights Division at the U.S. Department of Justice under the Obama Administration and is currently a Leadership in Government Fellow at Open Society Foundations. Adele P. Kimmel is a Senior Attorney and the head of the Anti-Bullying Campaign at Public Justice.
By Anurima Bhargava and Adele Kimmel