The minute Jefferson Beauregard Sessions III was confirmed as U.S. attorney general, the Trump administration set its sights on rolling back civil rights gains of the last 40 years. And it started with one of the most vulnerable populations: transgender kids.
Late Wednesday afternoon, Sessions and the administration withdrew an Obama administration joint Department of Justice (DOJ) and Department of Education (DOE) guidance to schools receiving federal funding that their transgender students have a right to use bathrooms consistent with their gender identities.
The move doesn’t change the law. Title IX of the Education Amendments Act of 1972 still protects the rights of transgender students to use restrooms and facilities consistent with their gender identities, as it always has. What the move does change is the federal government’s recognition of the fundamental humanity of those children.
In May of last year, the Departments of Justice and Education issued a “Dear Colleague” letter to most schools receiving federal funding clarifying that complying with Title IX means guaranteeing transgender students access to the appropriate restrooms and facilities. Dear Colleague letters are routine. They are effectively memos issued by federal agencies; in this case, the letter clarified schools’ existing responsibilities.
According to the New York Times, Education Secretary Betsy DeVos clashed with Sessions over withdrawing the guidance and allegedly told President Trump she was uncomfortable signing it. Sessions reportedly gave her the option to change her mind or resign her position in the administration. DeVos apparently caved.
“We have a responsibility to protect every student in America and ensure that they have the freedom to learn and thrive in a safe and trusted environment,” DeVos said in a statement explaining the administration’s change in opinion on the reach of Title IX.
“The guidance issued by the previous administration has given rise to several legal questions,” DeVos continued, referencing a lawsuit filed by several conservative state attorneys general in Texas federal court challenging the guidance.
“This is an issue best solved at the state and local level. Schools, communities, and families can find—and in many cases have found—solutions that protect all students.”
DeVos is no friend to LGBTQ rights. Regardless of the personal feelings the New York Times claims she has, she comes from a family that has spent a lot of money promoting policies that actively harm the LGBTQ community—especially LGBTQ children and teens. Civil rights advocacy groups united in opposition to her nomination in significant part due to that record. So the idea that withdrawing the Obama administration’s guidance was too much for DeVos to agree to, even initially, is a huge red flag about the administration’s moral and legal footing in doing so.
Withdrawing the guidance is legally meaningless. The only reason to do it is to spite transgender students. It’s cruel and it’s hateful: nothing more.
In March, the U.S. Supreme Court will hear arguments in the case of Gavin Grimm, a transgender student who, with the American Civil Liberties Union, sued his Virginia school district after a change in policy mandated he use bathrooms inconsistent with his gender identity. After a trial court initially ruled in favor of the school district, the Fourth Circuit Court of Appeals ruled twice in Grimm’s favor, holding his school district had violated Title IX.
Grimm’s case was filed and in the process of being litigated before the federal government issued its May 2016 guidance. In October 2015, in fact, the Obama administration filed an amicus brief on Grimm’s behalf stating Title IX already applied in Grimm’s case. The brief affirmed that the school board’s policy was a violation of federal law.
In addition to the very wording of the Dear Colleague letter–which, again, was a clarification of responsibilities, not a brand-new guidance—this amicus brief made it clear there has been no change in law. However, the federal government now has no intention of enforcing that law’s protections.
Now let’s talk about the patently deceptive argument the Trump administration is advancing to explain its position that Title IX doesn’t protect trans students.
DeVos cites two reason for the Trump administration changing course on transgender rights in the school: the chaos of ongoing litigation and states’ rights.
The first reason, the chaos of ongoing litigation, is disingenuous at best. In Grimm’s case, the federal government isn’t even a party, which means the case should proceed regardless of what Jeff Sessions thinks about transgender rights. The federal court opinions upholding the scope of Title IX didn’t hinge on the Obama administration weighing in. When the Fourth Circuit issued its “en banc” decision last year, it deferred to the government’s position because the court found that position reasonable. If the Fourth Circuit disagreed with the administration’s interpretation of Title IX, it had at least two opportunities to explain why by ruling against Grimm. It did not. So the case certainly shouldn’t hinge on the Trump administration either.
Also, the federal court challenge in Texas that DeVos letter blames for creating all this chaos around transgender rights? Conservatives specifically chose that federal court, with that particular federal judge. Judge Reed O’Connor, the federal judge overseeing both those challenges, is a hard-right favorite and reportedly on the short list to join the Fifth Circuit Court of Appeals. Conservatives filed their lawsuit challenging the guidance in O’Connor’s district for a reason: They were basically guaranteed a ruling in their favor.
To the extent there is any chaos in the courts concerning the scope of transgender student rights under Title IX, it is artificial and of conservatives’ own creation.
Now let’s discuss the intellectual dishonesty of framing transgender student rights as a question of state rights.
As an initial matter, the idea that Sessions as attorney general—or the Trump administration generally—would argue states’ rights trump civil rights should come as no surprise. Sessions has built his entire career carrying the water of the former Confederacy. On the campaign trail, Trump would repeatedly defer to the “states’ rights” response: Mostly recently, during the final presidential debate, then-candidate Trump said he thought abortion was a matter best left up to the states. That was a bait-and-switch then, and it is a bait-and-switch now.
Freedom from discrimination based on sex or gender identity is guaranteed under the 14th Amendment’s equal protection clause. Statutes like Title IX and other civil rights laws are designed to target specific forms of discrimination—in this case unequal access to education. They work together with the 14th Amendment to protect the full rights and privileges the law affords. Those rights and privileges are a federal guarantee that travel with a person, regardless of what state they happen to live in or, in this case, go to school. That means, in principle at least, a person in California has the same basic right to be free from discrimination as a person in Florida, regardless of the differences in state laws.
No state can legislate away a person’s fundamental constitutional rights, but that is what the Trump administration suggests can happen here.
As in the fight for abortion rights, conservatives are invoking “states’ rights” as a morality clause to object to behavior—or sadly, in this case, people—they find objectionable.
The same federal court DeVos mentioned as creating litigation chaos has allowed a lawsuit to go forward challenging transgender rights in accessing health care. In that lawsuit, several religiously affiliated nonprofits argue they should not have to treat transgender patients because they have a religious objection to being transgender.
In other words, a segment of the population insists it can use its religious beliefs to object to the fundamental humanity of another. This objection is, at its core, no different than the message the Trump administration sent to transgender kids Wednesday when it withdrew the guidance and stopped recognizing their rights to be free from discrimination at school. Regardless of the claim, whether states’ rights or religious faith, it’s all just a smoke screen for the desire to put other people in danger out of ignorance, fear, hatred, or moral depravity.
In terms of what happens next, like most things regarding the Trump administration, we’ll have to wait and see. With the Grimm case, the Roberts Court could continue and rule on the merits and decide whether Title IX protects the rights of students like Grimm. Or the court could send the case back to the appellate court for another look in light of the administration’s position that federal law doesn’t protect transgender students from discrimination in schools. The Roberts Court is scheduled to hear oral arguments in the Grimm case on March 28.
Meanwhile, as lawmakers and the courts engage in an intellectual debate over constitutional rights and the scope of federal law prohibiting sex discrimination, transgender students across the country show up to school every day uncertain whether their identity and humanity will be respected. These are students who already face the most harm in our schools. These are students already at the most risk of suicide or self-harm as a result of bullying and abuse. These are the kids that need protecting the most.
Many have to navigate their personal safety daily. Many are exposed to an uninformed public insisting they are the perpetrators, rather than victims, of crimes. Many have few guaranteed support structures. And yet, the new administration is willing to abandon them for political clout and its own self-satisfaction.