On Wednesday, President Trump’s Departments of Justice and Education is expected to issue a new memo rescinding the Obama administration’s guidance protecting transgender students. The new guidance is nothing short of an invitation for the nation’s schools to discriminate against, ostracize, and tolerate the bullying of transgender kids.
The “Dear Colleague” letter, as drafted, refers to the “significant litigation” that resulted from the previous guidance and the fact that “school administrators, parents, and students have expressed varying views on the legal issues arising in this setting.” It claims that they “also struggled to understand” how to implement the guidance to protect transgender students.
The letter notably stops short of establishing new guidance or standards; it simply explains that the departments will no longer rely on the previous legal interpretations.
Originally expected to be released Tuesday, the change in guidance was apparently held up due to objections from Secretary of Education Betsy DeVos. Though her family is known for channeling mass sums of money to anti-LGBT hate groups, both the Washington Post and New York Times reported that she was apparently resistant to rescind the trans protections. She either caved or was overruled in the end, but not before successfully adding a section stating that the change “does not diminish the protections from bullying and harassment that are available to all students” and that “schools must ensure that transgender students, like all students, are able to learn in a safe environment.” The letter does not, however, define what a “safe environment” is for transgender students. White House Press Secretary Sean Spicer said Wednesday the only disagreements regarding the new guidance were about “timing” and “wording” and that Devos was “100 percent” on board.
Despite this apparent internal fight, the change is not surprising. Just days after being confirmed, Attorney General Jeff Sessions announced that the Department of Justice would no longer be defending the Obama-era guidelines in court. On the campaign trail, Trump’s position on trans equality slowly devolved until he started saying that it was a “states’ rights” issue, a position Spicer reiterated at his briefing on Tuesday when asked about the expected change. “States’ rights” is an expression that has been used frequently over the history of the country to justify some states not extending rights to certain groups of people that other states do.
The National Center for Transgender Equality had advance notice that the change was coming. In an interview with the Washington Blade on Monday, Executive Director Mara Keisling reacted angrily. “To hear the president a week or two ago talk about how supportive he is of LGBT people,” she said, “it’s just outrageous that he go after trans kids this way.” Nearly 800 parents of transgender kids had sent a letter to Trump asking him to preserve the protections.
The Obama administration issued its guidance last May, instructing schools that the federal government would take the position that Title IX’s protections on the basis of sex also protected transgender students. For example, it recommended schools allow trans students to use facilities and participate in activities in accordance with their gender identities. “The desire to accommodate others’ discomfort,” the guidance stated, “cannot justify a policy that singles out and disadvantages a particular class of students.”
But the Obama administration’s guidance faced a backlash. Nearly half the states joined one of two lawsuits challenging the trans protections, and in August, a federal judge in Texas blocked their enforcement. On Wednesday, Spicer called the interpretation that Title IX protects transgender students “preposterous.”
With the Trump administration’s shift, there could be untold legal repercussions. In all likelihood, the suits challenging the original guidance will be dropped. Cases in which the Education Department’s Office of Civil Rights had been intervening in schools to protect individual transgender students will also likely be dropped, including cases defending students from lawsuits filed by parents who want to discriminate. This could spell the end of the departments’ fights with North Carolina over HB2, its law requiring anti-transgender people in all public buildings, including schools. It could additionally impact how the Supreme Court weighs the upcoming case of Gavin Grimm, a transgender high school student fighting for the right to use the restroom at school.
In short, transgender students fighting just for the right to basic education just lost their biggest advocate. Nevertheless, courts could still rule that Title IX does protect transgender students, but it won’t be because the federal government advocated for that interpretation.
As ThinkProgress has previously reported, there can be severe consequences when transgender students when they experience discrimination at school. When forced to use bathrooms that match their sex as assigned at birth, many avoid using the restrooms and locker rooms at all because they don’t feel safe in them. Some also “hold it” all day and likewise avoid drinking water, which has direct obvious consequences for their physical health.
Even schools that claim to be accommodating trans students with private restrooms could be doing them a disservice. If there’s only one such restroom, or if a student has to wait for a faculty member to unlock it for them, it could make them late to class. Such requirements would also out trans students to their classmates, leading to ostracization and bullying and possibly constituting a violation of their medical privacy as well.
Meanwhile, evidence continues to mount that the best way to support the well-being of transgender youth is to affirm their identities. This move from the Trump administration is nothing short of a license for schools to do the very opposite.
DeVos issued a statement Wednesday evening that didn’t even use the word “transgender.” She reiterated the administration’s belief that “this is an issue best solved at the state and local level,” meaning it’s apparently okay if some schools do reject and ostracize their transgender students.
“I have dedicated my career to advocating for and fighting on behalf of students,” she said, “and as Secretary of Education, I consider protecting all students, including LGBTQ students, not only a key priority for the Department, but for every school in America.” That remains to be seen.