New guidance from the federal government on schools’ treatment of transgender students is on the way, White House press secretary Sean Spicer confirmed today, and every sign is that it will rescind Obama-era protections.
At today’s press briefing, a journalist asked Spicer about a Monday report that the guidelines on equal treatment of transgender students would be rescinded. The guidelines, which are on hold while lawsuits make their way through the courts, recommend that schools recognize students’ preferred names and pronouns, and allow them to use the restrooms, locker rooms, and other single-sex facilities that correspond with their gender identity.
“Right now that’s an issue the Department of Justice and the Department of Education [will] address,” Spicer said. “I will tell you, I think that there will be further guidance coming from DOJ in particular with respect to not just the executive order but also the case that’s in front of the Supreme Court. The president has maintained for a long time that this is a states’ rights issue and not one for the federal government. So while we have further guidance coming out on this, I think that all you have to do is look at what the president’s view has been for a long time, that this is not something the federal government should be involved in, that this is a states’ rights issue.”
The guidelines, released by the Justice and Education departments last May, are nonbinding, but the departments did warn that schools not following them could face a loss of federal funding due to violations of Title IX, the law prohibiting sex discrimination in education. During Barack Obama’s presidency, the departments issued opinions that discrimination based on gender identity constitutes sex discrimination. And next month the Supreme Court is due to hear transgender student Gavin Grimm’s case against his Virginia school district, which denied him access to the boys’ restroom.
During his presidential campaign, Donald Trump pledged to rescind the guidelines, while offering a vague promise to “protect all people.” He said states should draw up their own guidelines.
But supporters of transgender rights say a national policy is sorely needed, with recent studies indicating as many as three-quarters of transgender students feel unsafe at their schools. “The Title IX guidance, widely hailed by educational and child health experts, made clear that transgender students are protected from discrimination and must be treated according to their gender identities,” said Mara Keisling, executive director of the National Center for Transgender Equality, in a prepared statement. “Should the Administration rescind the guidance, trans students would still be protected under Title IX. But such clear action directed at children would be a brazen and shameless attack on hundreds of thousands of young Americans who must already defend themselves against schoolyard bullies, but are ill-equipped to fight bullies on the floors of their state legislatures and in the White House. So we will fight for and with them.”
Freedom for All Americans executive director Matt McTighe this statement: “Transgender kids already face heightened levels of discrimination and harassment in schools. Frankly, rescinding this guidance demonstrates a disdain for the welfare of transgender youth that directly contradicts President Trump’s previous statements on equality. We strongly urge President Trump to consider the transgender students and their families who will be impacted by the actions of his Departments of Justice and Education before proceeding any further down this path.”
And from Human Rights Campaign president Chad Griffin: “Transgender young people face tragically high rates of discrimination and bullying, and they need a government that will stand up for them — not attack them. It’s shocking that this kind of harm would even be a subject of debate for the president. We call on Trump to immediately and permanently affirm the Obama Administration’s guidance and protect transgender students.”
Even if the Trump administration rescinds the guidance, schools would still be free to adopt transgender-affirming policies, and those that have them in place would not have to repeal them, Keisling and other activists said in a conference call with the media this afternoon. And the Obama administration, they noted, issued the guidelines in response to inquiries from school officials who wanted to implement best practices for transgender students and also avoid being found in violation of Title IX. About 40 percent of students go to school in districts that have implemented these affirming policies. "These protections are not anything new and they are not anything radical," Keisling said.
If the Trump administration backs away from the trans-inclusive interpretation of Title IX, courts can still interpret it in such a manner. "The courts, at the end of the day, decide what the scope of Title IX is," James Esseks, director of the American Civil Liberties Union's Lesbian Gay Bisexual Transgender & HIV Project, said during the call.
And that is one of the questions the Supreme Court is being asked to decide in the Gavin Grimm case. The U.S. Court of Appeals for the Fourth Circuit ruled in Grimm's favor in deference to the Department of Education's guidance, but in his school district's appeal to the Supreme Court, it is asking for a decision not just on whether the Fourth Circuit was correct in deferring, but also what the scope of Title IX is, with or without the guidance, Esseks explained. The ACLU is representing Grimm in the case. A positive ruling would strike down the portion of North Carolina's infamous House Bill 2 that restricts trans people's access to restrooms in government buildings.
One the whole, rescinding the guidance and putting the matter of trans student protections up to states is "simply and dangerously wrong," Keisling said. She and other activists, including officials with HRC and the Gay, Lesbian, and Straight Education Network, pointed out that trans students who are allowed to transition socially at school have much better outcomes. And when trans students are not protected, they face bullying, harassment, and worse. "When they are not allowed to be themselves, they suffer mightily," said GLSEN executive director Eliza Byard. And backtracking on the guidance could embolden legislators to introduce anti-trans bills, the activists said. The whole issue, Keisling said "is about adults trying to make political hay out of children."