The U.S. Departments of Justice and Education have withdrawn guidance instituted by the Obama administration on how schools should protect transgender and gender nonconforming students under Title IX. This serves the purpose of neither justice nor education.
Title IX prohibits sex discrimination by any institution receiving federal financial assistance. The guidance from the Obama administration clarified that discrimination against transgender students on the basis of gender identity violates Title IX. While guidance doesn’t create new law, it clarifies how the relevant federal departments will evaluate whether a person or institution is complying with existing law.
The Departments of Justice and Education withdrew the guidance in a “Dear Colleague” letter, saying that “there must be due regard for the primary role of the States and local school districts in establishing educational policy.” They also criticized the guidance for a lack of both “extensive legal analysis” and “any formal public process.” They cited “significant litigation regarding school restrooms and locker rooms” and explained that they had to “further and more completely consider the legal issues involved.”
Make no mistake, however. Bathrooms make the headlines, but the guidance covered much more than that, and this shouldn’t be reduced to the one hot-button issue. (I’m looking at you, New York Times.) Transgender students have also lost important safeguards against harassment and unequal access to programs, activities, and facilities. Among other things, the Obama-era guidance stated that schools receiving federal funds must:
- Treat transgender students consistent with their asserted gender identity, with no medical diagnosis or treatment needed;
- Use transgender students’ preferred pronouns and names;
- Provide transgender students “equal access to educational programs and activities even in circumstances in which other students, parents, or community members raise objections or concerns”;
- Understand that “Harassment that targets a student based on gender identity, transgender status, or gender transition is harassment based on sex.”
- Allow transgender students to participate in and access sex-segregated activities and facilities, if they exist, consistent with their gender identity. In particular, “A school may not require transgender students to use facilities inconsistent with their gender identity or to use individual-user facilities when other students are not required to do so. A school may, however, make individual-user options available to all students who voluntarily seek
additional privacy.”
Now, the federal government no longer guarantees those protections to students who are among the most vulnerable. As Gender Spectrum pointed out in an e-mail to supporters today:
- 75.1% of transgender students feel unsafe at school because of their gender expression
- 63.4% of transgender students reported avoiding bathrooms
- 41% of transgender or gender non-conforming people have attempted suicide
Where to go from here?
One bit of hope is in the original guidance, which pointedly noted, “As is consistently recognized in civil rights cases, the desire to accommodate others’ discomfort cannot justify a policy that singles out and disadvantages a particular class of students.” The U.S. Supreme Court next month will hear the case of Gavin Grimm, a transgender teen boy who is challenging his school district’s rule requiring students to use the restrooms corresponding to their “biological genders.” It is possible that the weight of civil rights precedent could sway them.
As GLSEN reminded us today, “Many federal courts have already determined that Title IX’s prohibition on sex discrimination and the Constitution’s guarantee of equal protection extend to transgender individuals. Fairly applied, the law remains on our side.”
Even today’s “Dear Colleague” letter did note:
All schools must ensure that all students, including LGBT students, are able to learn and thrive in a safe environment. The Department of Education Office for Civil Rights will continue its duty under law to hear all claims of discrimination and will explore every appropriate opportunity to protect all students and to encourage civility in our classrooms.
That’s laughable given that their actions today will mean trans students will likely feel less safe and able to thrive—but at least it’s something to point to when we need to take the Trump Administration to task.
Another piece of hope is in realizing that although federal protections may be gone, states and individual schools and districts may still choose to implement and enforce similar policies. And as Gender Spectrum noted in a post today, individual teachers have and will continue to have a positive impact:
Lack of federal guidance and support does not prohibit educators from creating and implementing supportive policies and practices. Educators created supportive learning environments for transgender students for many years prior to the Obama Administration guidance. They are doing so now and will continue doing so in the future. The moral and ethical obligation that calls educators to creatively solve the challenges of educating all students is not changed through the administration’s decision today.
Teachers or not, we as individuals can make a difference, too:
- Write to your elected officials.
- Support the National Center for Transgender Equality, Gender Spectrum, GLSEN, and other organizations fighting for trans students.
- Share knowledge of resources, like National Geographic’s Gender Revolution documentary, with teachers and friends.
- Per the National Center for Lesbian Rights: If you are a transgender student and are facing issues with your school, or if you know anyone who is, please contact the NCLR Legal Help Line at 1-800-528-6257.
- And if you are cisgender but know any transgender people or parents of transgender people personally, reach out to let them know you support them and that they have allies.