How scrapping transgender bathroom guidelines impacts schools

Thursday, February 23, 2017

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Story 

By Maria Danilova, Associate Press and Sadie Gurman, Associated Press

Trump administration guidance on transgender students’ bathroom access 

 

The Trump administration on Wednesday ended federal protection for transgender students that required schools to allow them to use bathrooms and locker rooms matching their gender identities, stepping into an emotional national issue.  The administration came down on the side of states’ rights, lifting federal guidelines that had been issued by the Obama administration. Without the Obama directive, it will be up to states and school districts to interpret federal anti-discrimination law and determine whether students should have access to restrooms in accordance with their expressed gender identity and not just their biological sex.

“This is an issue best solved at the state and local level,” Education Secretary Betsy DeVos said. “Schools, communities, and families can find — and in many cases have found — solutions that protect all students.”  The Obama guidance did not sufficiently explain how federal sex discrimination law known as Title IX also applies to gender identity, Attorney General Jeff Sessions said in a statement. “Congress, state legislatures and local governments are in a position to adopt appropriate policies or laws addressing this issue,” Sessions said.

In a letter to the nation’s schools, the Justice and Education departments said the earlier guidance “has given rise to significant litigation regarding school restrooms and locker rooms.” The agencies withdrew the guidance to “in order to further and more completely consider the legal issues involved.” Anti-bullying safeguards would not be affected by the change, according to the letter. “All schools must ensure that all students, including LGBT students, are able to learn and thrive in a safe environment,” it said. “This is an issue best solved at the state and local level,” Education Secretary Betsy DeVos said.

It was not clear what immediate impact the change would have on schools, as a federal judge in Texas put a temporary hold on the Obama guidance soon after it was issued — after 13 states sued. Even without that hold, the guidance carried no force of law. But transgender rights advocates say it was useful and necessary to protect students from discrimination. Opponents argued it was federal overreach and violated the safety and privacy of other students. White House spokesman Sean Spicer said President Donald Trump “has made it clear throughout the campaign that he is a firm believer in states’ rights and that certain issues like this are not best dealt with at the federal level.”

Conservative activists hailed the change, saying the Obama directives were illegal and violated the rights of fixed-gender students, especially girls who did not feel safe changing clothes or using restrooms next to anatomical males. “Our daughters should never be forced to share private, intimate spaces with male classmates, even if those young men are struggling with these issues,” said Vicki Wilson, a member of Students and Parents for Privacy. “It violates their right to privacy and harms their dignity.” 

However, the reversal is a setback for transgender rights groups, which had been urging Trump to keep the guidelines in place. Advocates say federal law will still prohibit discrimination against students based on their gender or sexual orientation. Still, they say lifting the Obama directive puts children in harm’s way. “Reversing this guidance tells trans kids that it’s OK with the Trump administration and the Department of Education for them to be abused and harassed at school for being trans,” said American Federation of Teachers President Randi Weingarten. Activists protested the move Wednesday outside the White House. “Respect existence or expect resistance,” read one placard. 

Spicer denied media reports that DeVos, who has been criticized for her stance on LGBT issues, had opposed the change but was overruled by Sessions. Spicer said any disagreement was merely over wording and timing. “There is no daylight between anybody,” Spicer said, adding that DeVos was “100 percent” on board with the decision.

The Obama administration’s guidance was based on its determination that Title IX, the federal law prohibiting sex discrimination in education, also applies to gender identity. While not legally binding, the guidance sent a warning that schools could lose funding if they did not comply.

Republicans pushed back, arguing that the federal effort was an example of Obama administration meddling in state and local matters. Texas Lt. Gov. Dan Patrick equated it to blackmail and said his state was ready to forfeit federal education money rather than comply. Legal experts said the change in position could impact pending court cases involving the federal sex discrimination law, including a case to be heard by the Supreme Court in March involving Gavin Grimm, a transgender teen who was denied bathroom access in Virginia. The justices could decide not to hear the case and direct lower courts to decide that issue. 

In a phone interview with the AP, Grimm said of the Trump action: “It’s not positive. It has the possibility of hurting transgender students and transgender people. We’re going to keep fighting like we have been and keep fighting for the right thing.” A patchwork of state laws could continue to emerge as a result of the change. Fifteen states have explicit protections for transgender students in their state laws, and many individual school districts in other states have adopted policies that cover such students on the basis of their gender identity, said Sarah Warbelow, legal director of the Human Rights Campaign. Just one state, North Carolina, has enacted a law restricting access to bathrooms in government-owned buildings to the sex that appears on a person’s birth certificate. Lawmakers in more than 10 states are considering similar legislation, according to the National Conference of State Legislatures.

WHAT IS THE FEDERAL BATHROOM GUIDANCE FOR SCHOOLS?

The Obama administration in May told public schools nationwide that they are obligated to treat transgender students in a way that matches their gender identity, even when records differ or it makes others uncomfortable. It was the administration’s determination that Title IX, the federal law prohibiting sex discrimination in education and activities, also applies to gender identity.

About 150,000 youth — 0.7 percent— between the ages of 13 and 17 in the United States identify as transgender, according to a study by The Williams Institute at the UCLA School of Law.

The Obama-era guidance held no force of law but sent a warning that schools could lose funding if they did not comply with the administration’s interpretation of the law. Republicans immediately pushed back, arguing it was an example of federal government overreach and the Obama administration meddling in local matters. Texas Lt. Governor Dan Patrick equated it to “blackmail” and said at the time that the state was ready to forfeit federal education money rather than comply with the guidance.

Thirteen states sued to challenge the directive. A federal judge in Texas temporarily blocked the guidance in August, and the Trump administration this month said it would no longer fight to limit the injunction.

WHAT COULD HAPPEN IF THE GUIDANCE IS WITHDRAWN?

Advocates said federal law would still prohibit discrimination against students based on their gender or sexual orientation even without the Obama guidelines.

“To cloak this in federalism ignores the vital and historic role that federal law plays in ensuring that all children (including LGBT students) are able to attend school free from discrimination,” Vanita Gupta, who was head of the Justice Department’s Civil Rights Division when the guidance was issued, said in a statement.

Still, legal experts say a change in position could have consequences for unresolved court cases dealing with Title IX.

The Supreme Court could decide to send a case about a transgender teen in Virginia back to a lower court. The high school senior was born female, but identifies as a male and wants to use the boys’ bathroom at his school. The high court is scheduled to hear the case in March. Courts are unsettled about whether, in the absence of guidance from the federal government, anti-discrimination laws require schools to allow students to use bathrooms and locker rooms based on their gender identity. The justices could direct lower courts to decide that issue.

Similar lawsuits are still playing out across the country.

“Some courts might say the fact that they go back and forth on this every time the administration changes, maybe we shouldn’t defer to it, maybe we should just decide for ourselves,” said Arthur Leonard, a professor at New York Law School who has studied LGBT legal history.

WHAT WOULD THE CHANGE MEAN FOR SCHOOLS?

A patchwork of state laws dealing with the bathroom issue will continue to emerge. Fifteen states have explicit protections for transgender students in their state laws, and many individual school districts in other states have adopted policies that respected such students on the basis of their gender identity, said Sarah Warbelow, legal director of the Human Rights Campaign. Just one state, North Carolina, has enacted a law restricting bathroom access to the sex at birth. But so far this year, lawmakers in more than 10 states are considering similar legislation, according to the National Conference of State Legislatures.

Transgender-rights advocates argued the guidance was a helpful tool for districts in understanding federal law. Without it, more schools could be subject to lawsuits as districts try to sort through the confusion, said Rachel Tiven, CEO of the LGBT advocacy group Lambda Legal. revising or rescinding the guidance

“The important thing to understand is that it doesn’t change the underlying law, but it’s an invitation to harm the most vulnerable kids in school,” Tiven said of any efforts to revise or rescind the guidance .

 

Questions

  • How might the lives of transgender students change Federal guidelines advising schools to let transgender kids use the bathroom that corresponds to their gender identity are being withdrawn by the Departments of Justice and Education?
  • Do you think that these decisions should be made at the state or federal government ? What about by your principal, teachers or students? Who do you think should make this decision? Explain your answer
  • Why might the right to choose the bathroom that corresponds to their gender identity be important to transgender students?

 

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