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A Gay College Dean Takes on Betsy DeVos's Transphobia

Anthony Niedwiecki

The Education Department's new guidelines are based on ideology, not law.

School can be tough for any kid, but for the LGBTQ+ community it can be compounded with added layers of bullying, disenfranchisement, and discrimination. I've seen this firsthand as a high school teacher, law professor, and now as a dean. As one of only a handful of openly LGBTQ+ deans to ever lead a law school in our nation's history, I am well aware of the added obstacles and challenges our community can face.

That's why I was so angered by the Department of Education when it recently announced it would no longer investigate or take action on any complaints filed by transgender students who are banned from restrooms that match their gender identity. This reversal of an Obama-era policy that protected transgender students under Title IX puts students' safety at risk and creates a hostile learning environment for trans, nonbinary, and LGBTQ+ students. The hostile environment fostered under these new guidelines also extends to transgender faculty and staff at schools and universities.

The 1972 federal civil rights law called Title IX bans discrimination on the basis of sex in publicly funded educational settings. Previously, the Obama administration took the view that Title IX ensured that transgender students could use restrooms and other school facilities that match with their gender identity, issuing guidelines and a memorandum to that effect in May 2016. This new reversal from the Trump administration and the Department of Education, led by Betsy DeVos, throws thousands of students into uncertainty and fear by singling out a vulnerable community as targets of federally sanctioned bullying and discrimination.

This new and dangerous stance from the Department of Education also defies recent court rulings and precedent. Decisions from the United States Court of Appeals for the Sixth Circuit and Seventh Circuit both suspended school restroom policies, citing Title IX protections. In May of last year, a unanimous three-judge panel of the Seventh Circuit wrote in Whitaker v. Kenosha Unified School District that a "policy that requires an individual to use a bathroom that does not conform with his or her gender identity punishes that individual for his or her gender non-conformance, which in turn violates Title IX."

This stark reversal, coming on the heels of Attorney General Jeff Sessions rescinding a policy protecting transgender workers and President Trump's attempting to bar transgender Americans from serving in the military, is now part of a troubling pattern of dismantling and attacking the rights of the transgender community.

It is clear that these new guidelines and decisions are being based on ideology, not the law.

Throughout my career, I've had the honor of connecting and helping transgender students as they seek to become lawyers to fight for our community. I've worked side-by-side with talented transgender faculty and staff as they teach the next generation of leaders. I've seen the challenges they face and marveled at the strength they showed as they overcame them. As educators, we should be supporting them at every turn, not turning a blind eye as state-sanctioned discrimination becomes the law of the land.

At Golden Gate University School of Law, we know our diversity is our strength. I believe everyone has the right to a safe, uplifting, and inclusive learning environment. We must continue our work as educators to improve the lives of not only our students but also the community around us, regardless of age, ethnicity, gender, religion, sexual orientation, gender identity, cultural backgrounds, educational experience, political perspective, work experience, physical ability, and socio-economic status.

As someone who has had to push past barriers to become an all-too-rare openly gay dean, I am calling on all schools and universities to reconfirm their commitment to uphold the dignity and civil rights of our transgender, nonbinary, and LGBTQ+ students, faculty, and staff.

I believe the law and legal education are fields and professions that must serve to protect all members of society. Golden Gate University School of Law's legacy of civic engagement, inclusiveness, diversity, and commitment to social justice spans over a century, and we will continue to live up to that. I encourage educators everywhere to do the same.

ANTHONY NIEDWIECKI is dean of Golden Gate University School of Law.

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Anthony Niedwiecki