It’s widely known that the Trump administration has overturned Obama-era protections for transgender students. It’s less well known that the way it did so, emphasizing states’ rights, was a gigantic tactical mistake that is going to blow up in their faces.
The substantive issue is whether transgender students in public schools should be allowed to use gender-appropriate restrooms, or whether schools may require them to use single-stall bathrooms or those corresponding to the students’ biological sex at birth.
Legally speaking, there are two avenues in which this debate is moving forward. First are two “guidance letters” by the Education Department, stating that Title IX—which prohibits discrimination in educational contexts based on sex—covers trans students as well, and requires schools to let them use gender-appropriate restrooms. That letter didn’t have the force of law, but because the DoE could withhold funds from non-conforming school districts, it did wield the power of the purse-strings.
Those letters were officially retracted in a February 22 letter by the civil rights directors of the Education and Justice Departments.
But there’s also the second legal avenue, which is a case brought by the ACLU on behalf of Gavin Grimm, a transgender student in Virginia—a case that will be argued at the Supreme Court on March 28. In that case, G.G. v. Gloucester County School Board, the Court is set to decide the same question: whether Title IX covers trans people.
In that regard, the February 22 letter is extremely odd. It doesn’t take a position on Title IX, instead saying that the government needs more time to “further and more completely consider the legal issues involved.” And it adds, echoing President Trump’s statements, that “there must be due regard for the primary role of the States and local school districts in establishing educational policy.”
That was a huge mistake, for three reasons.
First, the administration missed the opportunity to tell the Supreme Court its interpretation of Title IX. Earlier in the litigation, courts had deferred to the Obama administration’s interpretation. But with that gone, the Supreme Court now has…. nothing.
“We don’t really know the government’s position on Title IX,” said Joshua Block, the ACLU’s lead lawyer, in a press call discussing the G.G. case. “Technically, their position is neutral.”
That’s exactly right. And while the new government’s position isn’t technically part of the G.G. litigation, its February 22 letter practically begs the Court to weigh in.
It wouldn’t have been hard to simply take the opposite view. True, the new administration has only been in office a month, but that’s certainly not stopped them from taking bold positions on immigration, national security, and a myriad of other issues. Moreover, they’re not working on a blank slate. Conservatives (and one district court) have articulated anti-trans interpretations of Title IX for years.
Here, I’ll articulate one right now: Title IX is about sex discrimination, and was passed in 1972. The term “transgender” wasn’t invented until 1975, and there’s not a scintilla of evidence that Congress had anything like it in mind. Anyway, sex and gender are different things. This is a massive expansion of legislation that is totally unjustified by the statute or its legislative history.
That wasn’t hard to say—and yet the Trump administration chose not to say it, abdicating legal ground that it could easily have occupied.
Second, emphasizing states’ rights is incoherent. Said Block, “sex discrimination in public schools hasn’t been left up to the states since 1972. That’s why Title IX was passed. The federal government said that it is going to protect everyone no matter what state they live in.”
That, too, is exactly right. Like it or not, the whole point of federal legislation on civil rights is to take primacy over states’ rights. That, unlike the question of transgender equality, is in the statutory history of Title IX, and it’s absurd to argue “states’ rights” against a law that understands states’ rights quite clearly, and deliberately takes precedence over them.
Finally, the emphasis on states’ rights runs directly contrary to other Trump administration initiatives, such as its crackdown on marijuana users and its fight against “sanctuary cities.” In those and other contexts, the government is directly opposing states’ rights, usurping criminal law and threatening cities with bankruptcy if they allocate their own resources in a way the federal government dislikes.
Indeed, the last month has seen a reversal of the usual federalist dynamic. For two centuries—during the Civil War, the New Deal, the Civil Rights movement, and in countless contemporary contexts from environmental law to interstate commerce—conservatives have waved the banner of states’ rights, while liberals have opposed them. It’s in conservatives’ DNA. It’s why the conservative legal network is called “The Federalist Society.” It’s why Governor George Wallace stood in that schoolhouse door, opposing a federal desegregation order.
But now, the shoe is on the other foot. Now it’s progressive states and localities arguing states’ rights, and the federal government opposing them. The case that halted Trump’s travel ban was called Washington v. Trump and was filed by the state of Washington against the federal government. ‘Sanctuary cities’ rely on the longstanding priority given to local authorities for local law enforcement. (The term is really a misnomer, since generally, it only means that local officials won’t cooperate with federal immigration actions—not that they will oppose them.) We’re sure to see much more of this, particularly from blue states and cities.
Attorney General Jeff Sessions, who spearhead the effort to overturn the transgender protections, is from a generation for whom states’ rights and conservative resistance to civil rights were synonymous. But now, states’ rights are more about liberal resistance to the Trump administration. The same values that his department’s letter is promoting are opposed by the administration itself.
Trump’s about-face on transgender kids may or may not put him on the wrong side of history. But the feckless way in which that action was undertaken will certainly backfire when the issue is heard at the Supreme Court next month, and the next time “states’ rights” confronts the Trump administration. Because it will probably be on the other side.