Late Wednesday, after 33 days in office, the Trump administration revoked federal guidance protecting transgender students. A letter cosigned by the Department of Justice and the Department of Education withdrew the "Dear Colleague" letter by the Obama administration and federal interpretation of Title IX applying to transgender students. Instead, the administration is saying the matter is a "states' rights issue." This essentially says it is the position of the administration that Title IX, a federal law banning sex discrimination in education, does not apply to transgender students. The language used in the letter is almost exactly the same arguments used in Texas court filings by the Alliance Defending Freedom, an anti-LGBT legal organization designated as a hate group by the Southern Poverty Law Center.
The Trump "Dear Colleague" letter states:
"Please note that this withdrawal of these guidance documents does not leave students without protections from discrimination, bullying, or harassment. ... 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. The Department of Education and the Department of Justice are committed to the application of Title IX and other federal laws to ensure such protection."
However, setting things back to where they were prior to the Obama administration has severe consequences for transgender students. The protections in place for transgender students when they are not protected as a class are weak enough that most have almost no recourse when they are bullied or harassed by other students or even school faculty and administrators. The "separate but equal" accommodations provided to transgender students are anything but, and without Title IX protection there is almost no legal remedy. The claim that the Department of Education Office for Civil Rights will protect transgender students is not credible given the extremely high burden for proving discrimination if you are not part of an enumerated protected class.
While it is still possible for parents of transgender youth to seek legal remedy via Title IX, it will be much more difficult without the backing of the federal government and the Department of Justice. In the meantime, this decision signals that schools are free to go back to treating transgender students before, and we have ample evidence of how badly that turns out.
There is a very high legal bar for proving schools and administrators are liable for allowing bullying against classes of students not protected explicitly by federal law. As a result, both civil suits and criminal prosecutions are rarely pursued, and even fewer succeed. These are not a currently credible deterrent. In the recent National Transgender Survey, 77 percent of respondents who were out in grades K-12 reported bullying and mistreatment, 24 percent were physically assaulted, 13 percent were sexually assaulted, and 17 percent were forced to quit school due to pervasive mistreatment.
What is worse is that school administrations in states without explicit legal protections for transgender students are often responsible for mistreatment of transgender students. In one school in Wisconsin, a legal complaint alleges transgender students were forced to wear green armbands to ensure other students could report them for using the wrong bathroom. When this practice came out in the press, it drew uncomfortable comparisons to lesbians and gay men being forced to wear armbands with pink triangles in Nazi concentration camps. Another transgender student in Wisconsin was forced to change clothes for gym class in the janitor's closet because she was not allowed in either boys' or girls' locker rooms.
Entire communities have ganged up on children as young as 5 in Wisconsin, Missouri, and Ohio and driven them out of school and the community. One of the ringleaders of the attacks on the transgender kindergartner in Wisconsin claimed, without irony or self-awareness, "I don't want to see harm done to anyone."
In the cases of bathrooms and facilities, school administrators routinely use inferior "separate but equal" facilities to force transgender students to quit school. In Kansas a transgender student was forbidden to use either the men's or the women's restrooms. He was given the options of an outdated bathroom with a leaky ceiling and a broken door, one located off campus a block away, or one in a building on the other side of the school.
In Florida a nursing student was told she could use go to the bathroom only in a storage closet. In another case a student was only allowed to urinate in a bucket. In South Carolina,faculty members followed a transgender student around to ensure he used the girls' room and suspended him when he used the boys' bathroom.
The health consequences of anti-transgender school policies at a state and local level are devastating. Research in 2016 found a significant link between lack of access to bathrooms for transgender students and acts of self-harm as a result of increased minority stress and stigmatization. According to the Williams Institute at the University of California, Los Angeles, transgender students often miss class or experience absences as a result of lack of facilities access. Fifty-four percent reported adverse health effects from trying to avoid using public restrooms, such as dehydration, kidney infections, and urinary tract infections; and 58 percent reported that they have avoided going out in public due to a lack of safe public restroom facilities.
There is so much wrong with all of this.
First, during the presidential campaign, Donald Trump claimed, "I will protect our LGBTQ citizens," yet one of his first major acts in office was to repeal protections for the most vulnerable part of the community -- transgender youth.
The exclusion of transgender students from federal protections has clear consequences, as described above. Conversely, inclusion has had effectively zero downside. There are no demonstrated public safety risks with transgender protections. Claims by those opposed to letting transgender students use bathrooms in accordance with their gender identity have consistently been rated as "false" or "pants on fire" by PolitiFact.
Separate but equal was never equal. However, it is 2017 and we are again seeing a push, primarily in southern states, to segregate and harm an already highly stigmatized minority based on religious beliefs. These states are claiming that they should be allowed to segregate and fail to protect students based on "states' rights"; the exact same legal defense used to try to justify segregation and Jim Crow. They contend that the mental anguish of having to share space with a minority they fear and despise is sufficient reason to cause an actual harm to that minority.
If people wished they could have been a part of the first civil rights movement, to know they stood on the right side of history when it mattered, now would be the time to join the second.
BRYNN TANNEHILL graduated from the Naval Academy in 1997 before serving as a campaign analyst while deployed overseas. She later worked as a senior defense research scientist in private industry; she left the drilling reserves and began transitioning in 2010. Since then, she has written for OutServe, The New Civil Rights Movement, Salon, Everyday Feminism, The Good Men Project, Bilerico, and The Huffington Post.