The Trump administration has rescinded Obama-era guidance for public schools that promoted use of bathrooms based on student gender identity.
In a joint letter, officials within the justice and education departments rejected the previous administration’s position that non-discrimination laws require schools to allow transgender students to use bathrooms of their choice.
Under Title IX, schools that receive federal funding are not allowed to discriminate against students on the basis of sex. Obama justice and education departments, as well as numerous civil rights watchdogs, said long-standing Title IX protections encompassed gender identity.
And while the bulk of the debate surrounding the dueling letters of guidance has focused on bathrooms and locker rooms, the directive also made clear that school districts have many obligations to transgender students, just as they have for all students.
The original guidance was fueled by litigation already rolling through the courts, and was followed by additional court cases. Some states fought against it, and continue to fight against it, labeling the guidance as “the biggest issue facing families and schools in America since prayer was taken out to public schools.”
The Trump administration pointed to ongoing “significant litigation” while reversing the guidance, and implied civil rights protections should be decided at the state or local levels of government.
And, beyond such misconceptions about civil rights law, the action by the Trump administration can be accurately summarized as mean-spirited and vindictive.
The Obama guidance generated a lot of hubbub, but lacked the force of law. Because of ongoing court cases, no school was in danger of losing federal funding as a result of non-compliance with the guidelines.
The U.S. Supreme Court decided last year to hear oral arguments in one such case. Those arguments are scheduled to begin next month.
So, it will be the courts and not a White House edict that answers the question of whether or not Title IX “sex” protections encompass “gender identity.” Rescinding the guidelines made no legal difference.
Even if the High Court stalls because it lacks a justice (for more than a year), the case will revert to the decision of the lower court, which sided with 17-year-old transgendered student, Gavin Grimm.
No doubt newly minted U.S. Attorney General Jeff Sessions, who has voiced concerns about and voted against civil rights protections for gay, lesbian and transgender people, hopes lifting the Obama guidance on public school restrooms will influence the court or otherwise negatively impact arguments by Grimm’s legal team.
It won’t because the question before the court is larger than departmental guidelines. It’s a question of civil rights.
But in the interim Trump’s guidelines, like many of his actions, will send a message. They may embolden someone who sees me hurrying into the empty men’s room at a convenience store to say hurtful things or take a swing.
Worse yet, lifting the guidelines may convince some officials it’s OK to discriminate against children.
Online update, Feb. 24, 2017 at 10:30 a.m.:
After this column was complete, I received information from the ACLU of Iowa regarding an incident at Newton High School. According to the organization, a demand letter was sent to the school in reference to the reprimand of a transgendered sophomore. The student was required to wash off the words “Love Trumps Hate,” which he’d written on his forearm. He was told that students should not discuss politics, and labeled as the opposite gender, which the ACLU notes was done “with the intent to belittle him.”
When other students wanted to protest on the transgendered student’s behalf, they were told they would not receive varsity letters if they participated.
The incident occurred on the 48th anniversary of the landmark free speech case Tinker v. Des Moines Independent Schools. In the case the U.S. Supreme Court ruled that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” The suit was brought by the ACLU of Iowa on behalf of three Des Moines students who had been sent home from school for wearing black armbands to protest the Vietnam War and refusing to remove them. A video message from Mary Beth Tinker is below.
This column by Lynda Waddington originally published in The Gazette on February 25, 2017. Photo credit: Jonathan Drake/Reuters