Amid expectations that the Trump administration will rescind Obama-era guidance on equal treatment of transgender students in schools that receive federal funding, there is news that the two Cabinet members involved have clashed over the move.
Attorney General Jeff Sessions, a longtime opponent of LGBT rights, has been all for repealing the guidelines, but Secretary of Education Betsy DeVos “initially resisted” doing so, The New York Times reports. However, under pressure from Sessions and Donald Trump, DeVos has agreed to the move, as she was unwilling to either resign or go against the president, but she and Sessions reportedly still have differences over the language of the directive that will reverse the previous one, according to the paper. The directive, which has to come from both the Education and Justice Departments — the attorney general heads the latter — could be issued as early as today.
Last year, while Barack Obama was president, the departments issued the guidelines, saying among other things that transgender students should be called by their preferred names and pronouns, and have access to the restrooms, locker rooms, and other single-sex facilities that correspond with their gender identity. The guidelines are nonbinding, but the Obama administration had warned that schools not following them could be found in violation of Title IX of the Education Amendments of 1972, which prohibits sex discrimination, and face a loss of federal funding. During Obama’s presidency, the departments held that Title IX covers discrimination based on gender identity.
LGBT rights activists say the government issued the guidelines in response to inquiries from school districts about how to adhere to best practices concerning trans students and avoid Title IX violations.
A federal judge has placed the guidance on a nationwide hold while a lawsuit from several states challenging them makes its way through the courts. Sessions recently withdrew a request filed during Obama’s presidency to limit the hold to the states involved in the suit. And a draft of the repeal directive, obtained by the Times, cites lawsuits and confusion over the guidelines as reasons for lifting them.
“School administrators, parents and students have expressed varying views on the legal issues arising in this setting,” the draft says, according to the Times. “They have also struggled to understand and apply the statements of policy and guidance.”
It also says, “Schools must ensure that transgender students, like all students, are able to learn in a safe environment,” language that DeVos fought for, the Times reports.
Members of DeVos’s family, including her mother, her late father, and her in-laws, have donated to numerous anti-LGBT organizations and campaigns. DeVos herself does not have an extensive public record on LGBT issues, but associates have said she is supportive and that she has expressed concern about the high rate of suicide among trans youth. However, that raises the question of why she has not spoken out on these issues. As an Advocate commentary piece recently asserted, true allies are not silent.
Activists have pointed out that even if the guidelines are rescinded, schools remain free to set inclusive and affirming policies for transgender students, noting that trans young people do much better in school if their identity is affirmed. Also, courts remain free to rule on the scope of Title IX, which is one of the questions that will be before the U.S. Supreme Court next month when it hears the case involving transgender teen Gavin Grimm, who sued his Virginia school district after it denied him access to the boys’ restroom.