Trump Rescinds Transgender Student Protection Guidelines

Trump attacked LGBTQ rights by rescinding the Obama transgender Title IX guidelines

Despite assurances he would take no action against the LGBTQ community, Donald Trump rescinded the guidelines issued by the Obama administration clarifying Title IX protections afforded to transgender school children. The guidelines – issued by a joint DOJ / DOE statement under Obama – protected transgender students’ rights to use gender-segregated facilities based on their gender identity.

The removal of Obama’s guidelines does not remove actual legal protections as they’ve been interpreted to be a core component of Title IX’s sex discrimination protections. Rather, tonight’s memo sent a message to schools across America that the Trump DOJ would offer no support to transgender students if school administrations choose to ignore Title IX and discriminate against transgender children.

The New York Times reported tonight on the rescinded guidelines:

In a joint letter, the top civil rights officials from the Justice Department and the Education Department rejected the Obama administration’s position that nondiscrimination laws require schools to allow transgender students to use the bathrooms of their choice.

That directive, they said, was improperly and arbitrarily devised, “without due regard for the primary role of the states and local school districts in establishing educational policy.”

Lambda Legal added:

“We all know that Donald Trump is a bully, but his attack on transgender children today is a new low. The U.S. Department of Education’s decision to withdraw guidance clarifying the rights of transgender students endangers the well-being and safety of children across the country.

“Trump’s actions do not change the law itself—transgender students remain protected by Title IX of the Education Amendments of 1972—but abandoning the guidance intentionally creates confusion about what federal law requires. The law bars discrimination – the new administration invites it.

Interestingly, the removal of protections produced an internal power struggle within the White House as Education Secretary Betsy DeVos raised concerns about rescinding the guidelines. When push came to shove, she fell in line behind Attorney General Jeff Sessions as Sessions had Trump’s support in removing the protections.

The New York Times added:

Mr. Sessions, who had been expected to move quickly to roll back the civil rights expansions put in place under his Democratic predecessors, wanted to act decisively because of two pending court cases that could have upheld the protections and pushed the government into further litigation.

DeVos’ “compromise” entailed agreeing with Sessions that protections transgender students in gender-segregated school facilities is not a ‘federal matter’ while asserting the DOE would investigate all claims of discriminatory treatment “against those who are most vulnerable in our schools.”

It’s an odd argument that the federal government can’t offer guidance on protecting at-risk students but will (maybe) be there to investigate cases where those same students are harassed, discriminated against or otherwise harmed due to lack of guidance or support in enforcing existing protections.

“The consequences of this decision will no doubt be heartbreaking,” said HRC president Chad Griffin commenting on the administration’s removal of protective guidelines. “This isn’t a states’ rights issue; it’s a civil rights issue.”

DeVos’ guarantee that the DOE will investigate claims is laid out in tonight’s order. “All schools must ensure that students, including L.G.B.T. students, are able to learn and thrive in a safe environment,” it says.

Tonight’s first assault on the LGBTQ community by the Trump administration sets the stage for Sessions to take action on two transgender cases currently making their way through the judicial system.

The Washington Post touched on this in their coverage of the memo:

The new letter scrambles the calculus for a number of lawsuits working their way through the courts, particularly the case of Gavin Grimm, a transgender Virginia teen who sued his school board for barring him from the boys’ restroom. The case is scheduled for oral arguments before the U.S. Supreme Court next month. A lower court cited the Obama administration’s position on transgender student rights in siding with Grimm.

Grimm said he was disheartened that the Trump administration is withdrawing the guidance. The Gloucester, Va., school board continued to bar him from the boys’ bathroom even after the Obama guidance was issued, but Grimm said the directive was “incredibly empowering.”

“It certainly bolstered hope that the future for transgender students was looking up in a way that it hadn’t been previously,” Grimm said.

Amber Briggle, the mother of a 9-year-old transgender boy in Denton, Tex., said she views the Trump administration’s position as a temporary setback and hopes that the Supreme Court will affirm transgender students’ rights. But the withdrawal of the Obama directive is a blow, she said, because the guidance made her feel that Washington cared about children like hers and understood the support they need.

“I just don’t think my family matters to the Trump administration,” she said.

Civil rights and LGBTQ groups reacted with horror and rebuke tonight that the Trump administration would choose children as its first target in rolling back LGBTQ rights.

PFLAG said:

“PFLAG hearts everywhere are with the worried parents who will be kept awake tonight, and the kids who will be scared to go to school in the morning.  Tomorrow we will fight even harder for the protections that Title IX still affords all transgender youth across the country.”

GLSEN also released a statement that said in part:

“While the Trump administration may abandon transgender students, GLSEN won’t. And neither will the thousands of teachers, administrators and parents around the country who work with GLSEN and our local Chapters to ensure that transgender students everywhere have the opportunity to simply be themselves and live better lives. Schools, leaders and teachers must do the right thing and give all students the chance in life they deserve.

“Research has consistently shown that transgender students are more likely to face severe violence and discrimination at school than their peers, and at greatly increased risk of suicide and self-harm as a result. GLSEN’s National School Climate Survey has shown that 76 percent of transgender students felt unsafe at school simply because of their gender. We also know that transgender students who are allowed simply to be themselves at school are as healthy and happy and successful as their peers. Rescinding guidance designed to help schools help them makes zero sense.

“The administration’s actions today do not and cannot change the well-established legal foundations upon which the federal Title IX guidance is based. Many federal courts have already determined that Title IX’s prohibition on sex discrimination and the Constitution’s guarantee of equal protection extend to transgender individuals. Fairly applied, the law remains on our side.”

The Southern Poverty Law Center (SPLC) also chimed in stating:

“The Trump administration today showed a few more of its true colors, and they are decidedly not the colors of the rainbow. By rescinding federal guidance from the Departments of Justice and Education that helped to ensure equal educational opportunities for transgender students, the administration has contributed to the baseless hysteria and panic that puts so many vulnerable transgender youth at risk.

“But we don’t need Jeff Sessions or Betsy DeVos to tell us whether these young people deserve protection. We know that they deserve protection, as well as equality and respect, and we know that Title IX and the U.S. Constitution demand it. We will continue to fight for transgender students in classrooms and school board meetings and courtrooms throughout the country, and we will prevail.”

As the Trump administration places transgender children across the nation in danger, legal and civil rights advocacy organizations will continue fighting in and out of court to ensure Title IX’s protections aren’t ignored by the current DOE and DOJ.

ACLU LGBT & HIV Project Director James Esseks said it best this evening when he commented:

“While it’s disappointing to see the Trump administration revoke the guidance, the administration cannot change what Title IX means. When it decided to hear Gavin Grimm’s case, the Supreme Court said it would decide which interpretation of Title IX is correct, without taking any administration’s guidance into consideration. We’re confident that that the law is on Gavin’s side and he will prevail just as he did in the Fourth Circuit.”

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Tim Peacock is the Managing Editor and founder of Peacock Panache and has worked as a civil rights advocate for over twenty years. During that time he’s worn several hats including leading on campus LGBT advocacy in the University of Missouri campus system, interning with the Colorado Civil Rights Division, and volunteering at advocacy organizations. You can learn more about him at his personal website.

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