Apparently the “T” was silent.
This evening, after days of speculation—sparked by a Monday evening Washington Blade report and further fueled by a Tuesday statement from Press Secretary Sean Spicer that the president considers the ongoing bathroom debate to be a “states’ rights issue”—the Departments of Education and Justice issued a joint letter rescinding the Obama administration’s 2016 guidance on transgender students.
The letter concludes that “in this context, there must be due regard for the primary role of the States and local school districts in establishing educational policy.”
The Obama administration’s previous guidance, sent to schools by the Departments of Education and Justice last May as a “Dear Colleague” letter, made it clear that the federal government considered restrictions on transgender students’ access to restrooms and locker rooms to be in violation of Title IX’s 1972 ban on sex discrimination in public education.
With that guidance now officially rescinded, Title IX is still the law of the land but President Trump, Attorney General Jeff Sessions, and Secretary of Education Betsy DeVos have now signaled their divergence from the interpretation held by the Obama administration—and relied on by the Fourth Circuit Court of Appeals—that it clearly prohibits discrimination against transgender students.
(The new joint letter claims that the Obama administration’s guidance did not “contain extensive legal analysis or explain how the position is consistent with the express language of Title IX, nor did they undergo any formal public process.”)
What this means concretely is that individual states and schools could still find themselves on the receiving end of Title IX lawsuits.
But the new Trump administration letter sends the message that states and schools can require transgender students to use bathrooms corresponding to their birth-assigned gender without necessarily being penalized by the Justice Department’s Civil Rights Division or immediately risking the loss of federal funding.
“On the bright side, [Trump] can now just shut up about being supportive of LGBT people,” an incensed Mara Keisling, executive director of the National Center for Transgender Equality, told The Daily Beast. “He is going after our kids. It doesn’t get any clearer than that.”
“What could possibly motivate a blind and cruel attack on young children like this?” asked Human Rights Campaign president Chad Griffin in a statement.
Transgender students are a uniquely precarious subset of the LGBT population. The 2015 U.S. Transgender Survey found that over half of respondents who were out as—or perceived as—transgender during their K-12 years reported being verbally harassed, nearly a quarter said they were physically attacked, and 13 percent said they had been sexually assaulted.
That same year, LGBT youth advocacy group GLSEN found in their National School Climate Survey that 60 percent of transgender students had been required to use a bathroom that did not correspond with their gender identity.
The Trump administration’s new letter maintains that “schools must ensure that transgender students, like all students, are able to learn in a safe environment” and claims that “this withdrawal … does not leave students without protections from discrimination, bullying, or harassment.” It also claims that both federal departments are “committed to the application of Title IX and other federal laws” to protect transgender students from such discrimination.
But requiring transgender students to use bathrooms that do not match their gender—as some states and school districts may now feel more empowered to do—would still single them out.
Forcing transgender students to use facilities for their birth-assigned gender can also have adverse effects on their physical and mental health.
The U.S. Transgender Survey found that almost a third of transgender people had “limited the amount they ate and drank to avoid using the restroom in the past year.” Eight percent said they had developed a urinary tract infection or a kidney-related health problem due to restroom avoidance.
And one 2016 study of transgender people who had attended college—published last year in the Journal of Homosexuality—found that “denial of access to [bathrooms and campus housing] had a significant relationship to suicidality, even after controlling for interpersonal victimization.” Transgender youth already think about and attempt suicide at astronomically high rates, although individual risk tellingly tends to decrease with social support.
Recognizing these and other potential consequences of anti-transgender discrimination in U.S. schools, multiple medical associations—including the American Academy of Pediatrics and the American Association of Child and Adolescent Psychiatry—have formally opposed legislation that restricts restroom access based on birth-assigned gender in the past.
But the Trump administration has now opened the door that much wider for states and school districts to discriminate in precisely this fashion.
“It’s absolutely horrifying and distressing to think that this administration would take such a despicably cruel step as to target the most vulnerable members of our community, transgender children, for this kind of attack,” Ilona Turner, legal director for the Oakland-based Transgender Law Center, told The Daily Beast.
The rescinding of Obama’s guidance comes at a critical moment in the broader battle for transgender rights.
On March 28th, the Supreme Court is set to hear oral arguments in the case of Gavin Grimm, a Virginia transgender boy who cannot use the boys’ restroom in his high school because the Gloucester County school board requires him to use an “alternative” bathroom instead. The Supreme Court could rule that transgender students are indeed protected by Title IX—although the court’s current lack of a ninth justice increases the chances of a 4-4 tie, which would uphold the Fourth Circuit’s decision in Grimm’s favor without cementing an important precedent.
And in a separate but related case, the Justice Department was scheduled to challenge a federal judge’s August 2016 injunction on the Obama administration’s guidance. As the New York Times reported, however, the Justice Department promptly withdrew that challenge two days after Jeff Sessions was confirmed as Attorney General—a move that foreshadowed today’s letter.
For parents of transgender children like Amber Briggle, who is raising her son in Texas, following the federal government’s position on this issue has been a rollercoaster. Last May, when the Department of Justice came out swinging on behalf of transgender students, Briggle was thrilled.
“For us, when the DOJ had this letter, it came out of the clear blue sky,” said Briggle, one of hundreds of parents who signed a Human Rights Campaign letter to the Trump administration last week urging the president to keep the Obama guidelines in place.
“I cried,” Briggle continued. “I thought, ‘Oh my God, the Department of Justice and the president—they see my child. They see him and they recognize him and they know that he deserves equality and protection.’ I was floored. I was elated.”
The fact that Trump reversed course so quickly did not shock her.
“Honestly I’m not surprised that the Trump administration is going to drop those guidelines,”Briggle said, calling the move “unfortunately predictable.”
According to a Wednesday morning New York Times article, however, the scene inside the White House was reportedly quite erratic. Three Republican operatives who were privy to internal White House conversations around this issue indicated that DeVos did not want to rescind Obama’s 2016 guidance but—under pressure from Sessions and Trump—ultimately had to decide between resigning and signing off on the letter. She chose the latter.
In a further statement Wednesday evening, which can be read in full here, DeVos said, “I have dedicated my career to advocating for and fighting on behalf of students, 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." DeVos reiterated the statement in a series of tweets, which received immediate and angry criticism from those questioning how DeVos could claim to be an LGBTQ advocate while sanctioning discrimination against trans students.
(Spicer claimed during Wednesday’s press briefing that there was “no daylight” between the members of the Trump administration on this issue, that DeVos was “100 percent” on board, and that media reports of internal disagreement were about “timing” and “wording.”)
Trump himself has long been clear that he intended to make this move if elected. Early in his candidacy, he invited Caitlyn Jenner to use the ladies’ room in Trump Tower and even criticized North Carolina’s anti-transgender law HB 2, which restricts public bathroom use by birth certificate. Some commentators saw those comments as evidence of a more laissez-faire stance on the bathroom debate.
But by late April of last year, the unpredictable candidate had shifted his position, telling Sean Hannity, “I think that local communities and states should make the decisions. And I feel very strongly about that. The federal government should not be involved.”
A month before the election, too, Mike Pence confirmed to evangelical leader James Dobson that the Trump administration was planning to send the transgender bathroom debate to the state level, saying, “Washington has no business intruding on the operation of our local schools.”
But looking forward, transgender advocates say that Title IX is indeed Washington’s business.
“Enforcing federal civil rights law is not a ‘states’ rights issue,’” said Keisling. “It is a federal government duty. It is not a state-by-state optional exercise.”
And the Transgender Law Center has vowed to pursue legal action, if necessary, to challenge Trump’s interpretation of Title IX.
“We’re going to fight,” Turner told The Daily Beast. “We’re going to do absolutely whatever it takes to protect these kids because that’s what we’re here for and we’re not going to stop.”