Yesterday, the Trump Administration announced it was revoking guidelines issued by the Department of Justice and Department of Education on transgender rights in public schools. But that doesn’t mean Title IX is out the window. Find out what is and isn’t changing because of the rollback.
On Wednesday, February 22, 2017, Press Secretary Sean Spicer announced that the Trump Administration would withdraw guidelines issued last year on how schools were to treat transgender students. The announcement rolls back government protections against gender discrimination and is raising concerns about the safety and dignity of trans* students across the country.
What Were the Guidelines Anyway?
In 2016, under then-President Obama, the Department of Justice and the Department of Education came together to issue a “Dear Colleague Letter on Transgender Students.” The letter encouraged schools to adopt inclusive policies and protect LGBTQ students against gender discrimination, bullying, and harassment. Among other things, the guidelines addressed the “bathroom issue”, saying transgender students should be allowed to use restrooms that matched their gender identity, rather than the sex indicated on their birth certificates or a segregated nurse’s station.
The guidelines did not change federal law; only Congress can do that. Instead, it applied federal court precedent, which held that mistreatment of transgender individuals is illegal gender discrimination based on outdated sexual stereotypes of what it means to be male or female. The Obama Administration said that states and schools not complying with the letter could lose federal education funding.
But 13 states, including Michigan, challenged the letter in federal court. Last fall, a federal district court judge issued an injunction preventing the letter’s enforcement. According to the court, the Obama Administration hadn’t followed the appropriate procedures before issuing the letter.
Why Revoke Unenforced Guidelines?
The Trump Administration used the procedural argument as one reason to revoke the Dear Colleague letter. It also said that education policy should be the role of states and local school districts. In its own “Dear Colleague” letter the Trump Administration said “These guidance documents do not, however, contain extensive legal analysis or explain how the position is consistent with the express language of Title IX, nor did they undergo any formal public process.”
The letter did not offer a replacement, or provide any extensive legal analysis or explanation of its own. It revoked the previous 9-page letter in just 2 1/2 pages. Nor did it give any justification for putting states’ rights over the civil rights of their students.
An Administration Divided?
The New York Times reports that the newly confirmed Secretary of Education Betsy DeVos was opposed to the letter. The Times reported:
“Ms. DeVos initially resisted signing off and told Mr. Trump that she was uncomfortable because of the potential harm that rescinding the protections could cause transgender students, according to three Republicans with direct knowledge of the internal discussions.”
Attorney General Jeff Sessions had to go over her head to President Trump himself to get the letter issued. That may explain the letter’s warning, “Please note that this withdrawal of these guidance documents does not leave students without protections from discrimination, bullying, or harassment. All schools must ensure that all students, including LGBT students, are able to learn and thrive in a safe environment.”
What is Changing, And What’s Not
Transgender bathroom access is currently up for debate in front of the United States Supreme Court. On March 28, 2017, the Court will hear the case of Gavin Grimm, who says the school’s policy requiring him to use the bathroom corresponding with his biological sex (female) or a single-stall restroom in the school office is illegal sex discrimination under Title IX of the U.S. Education Amendments of 1972.
“While it’s disappointing to see the Trump administration revoke the guidance, the administration cannot change what Title IX means. When it decided to hear Gavin Grimm’s case, the Supreme Court said it would decide which interpretation of Title IX is correct, without taking any administration’s guidance into consideration. We’re confident that that the law is on Gavin’s side and he will prevail just as he did in the Fourth Circuit.”
Grimm’s case was filed by the ACLU, not the Department of Education or the EEOC. Existing Supreme Court precedent says that discrimination against transgender individuals based on their gender expression is sex discrimination under federal civil rights laws. While the Trump Administration may have issued its letter when it did to try to push the Supreme Court in one direction, it is not a legal pleading for the Court’s consideration.
What it has done is motivate LGBT rights advocates to continue the fight. Rachel Tiven, chief executive of Lambda Legal, told Reuters:
“We all know that Donald Trump is a bully, but his attack on transgender children today is a new low.”
Protesters have already gathered in front of the White House chanting “No hate, no fear, trans students are welcome here” and bearing signs that say things like “Respect existence or expect resistance.”
The Trump Administration’s Transgender rights rollback may give some state legislators and school officials the space they need to reinstate discriminatory and degrading policy against transgender students. But it has also put in motion a force of advocates ready to stand against illegal gender discrimination in our schools.
Lisa J. Schmidt is a students’ rights attorney at Schmidt & Long, PLLC, in Ferndale, Michigan. She represents students facing discipline at school. If your son or daughter is having trouble at school, contact Schmidt & Long for a free consultation.