LGBTQ rights advocates responded with outrage to the Trump administration’s reversal of an Obama era guidance that guaranteed transgender school students access to bathrooms consistent with their gender identity – but they also emphasized that the shift does not necessarily impact a pending Supreme Court case on that issue nor does it affect dramatic progress in the lower federal courts or in school districts all over the nation.
“This is outrageous,” said Mara Keisling, executive director of the National Center for Transgender Equality, in a press call one day before the administration formally unveiled its new policy on February 22.
Responding to comments made by White House press secretary Sean Spicer on February 21, Keisling said it is “simply and dangerously wrong and incorrect” for the president to characterize the controversy over bathroom access in the schools as a “states’ rights” issue.
Title IX of the federal government’s 1972 education legislation, under which sex discrimination is prohibited, she said, is not subject to local opt-out. The Obama administration and a growing number of federal courts have interpreted that sex discrimination language to protect students based on their gender identity.
Then, alluding to comments Trump made on January 30 when the White House announced it would not roll back an Obama executive order protecting employees of federal contractors from sexual orientation and gender identity discrimination, Keisling said the new administration’s action “contradicts” the president’s claim that he “respects and will protect LGBT people.”
The Trump administration’s new policy was announced after Attorney General Jeff Sessions and Education Secretary Betsy DeVos came to an agreement on a statement backing away from a policy jointly announced last June by the Departments of Justice and Education. Press reports said that DeVos initially resisted Sessions’ insistence on reversing the Obama policy, but that Trump ordered her to stand down.
During the February 21 press call, Keisling and Sara Warbelow, the legal director at the Human Rights Campaign, pointed to widespread adoption around the nation of policies consistent with the Obama guidance and the swell of federal court decisions that have interpreted sexual discrimination language in Title IX and other legislation to protect people on the basis of gender identity (and, in some rulings, sexual orientation, as well).
Fifteen states now have formal policies ensuring transgender students of equal treatment in schools, including access to bathrooms appropriate for their gender identity, and protecting them from harassment and bullying. In tandem with policies established on the local level, an estimated 40 percent of school students are covered by transgender-inclusive practices.
Keisling noted that the Obama administration developed its policy on transgender students on the urging of local school officials who were looking for clarity on how to proceed. The Trump reversal, she said, “is terrifying parents and kids, who have to face bullies every day.” The new policy, she added, “is going to confuse schools, they are not going to know what to do, and they will face liability.” Pointing to the string of victories on gender identity litigation, Keisling said, “Nobody wants to be on the business end of a transgender lawsuit.”
Eliza Byard, executive director of GLSEN, the Gay, Lesbian and Straight Education Network, said she found it “obscene” that Spicer characterized the “well-being” of transgender students as a states’ rights issue, and pointed to numerous studies that demonstrate that policies in which the rights and dignity of transgender students are respected lead to outcomes where trans students have “exactly the same psychological profile” as other teenagers, while trans students educated in environments where they are not protected have a high risk for social problems, including suicide attempts.
Batting down the notion that giving transgender students access to appropriate bathrooms somehow threatens non-trans students using such facilities, Byard pointed to a 2015 survey of schools educating 600,000 students, where there were “zero problems” voiced by young people.
“This is a fight created by adults,” she charged, adding that the Obama policy was one that saves lives “and has hurt exactly nobody.”
Two days after the advocates spoke to the press, attorneys from the American Civil Liberties Union held a media call to discuss how the new Trump administration policy impacts – and does not impact – a case involving transgender student bathroom access due to be argued at the Supreme Court on March 28.
In Gloucester County School Board v. G.G., Gavin Grimm, a 17-year-old transgender high school senior, is suing his school district in Virginia, which stepped in with a policy denying him use of the boys’ bathroom, even though the school had earlier allowed him to use it without incident.
Last year, the Fourth Circuit Court of Appeals found in Grimm’s favor, ruling that federal courts should defer to the Obama administration’s interpretation of Title IX.
Joshua Block, a senior staff attorney in the ACLU’s LGBT & HIV Project, acknowledged that the new Trump policy renders that specific issue moot, but pointed to the other question the Supreme Court asked the two sides to address: What is the correct interpretation of Title IX as it relates to transgender students?
“The confusion caused by the [Trump] administration only underscores the need for clarity” in how local school officials should proceed, Block said.
Noting that the Obama policy emerged after years of development, he contrasted the quality of its legal underpinnings with he clearly sees as a slapdash analysis in the Trump administration announcement.
Chase Strangio, an ACLU colleague of Block who is transgender, said the Grimm case “is about so much more than restrooms. Can Gavin and similar kids participate in public life?”
The Trump announcement, he said, “is a very cruel message – that transgender youth are somehow deserving of the horrible treatment they face.”
Then, perhaps mocking the president for his boast – later abandoned – that he would challenge a federal court’s stay on his immigration and refugee order, Strangio said, “We have repeatedly told the Trump administration we will see them in court.”
The ACLU press call also included John Austin, the former chair of the State Board of Education in Michigan, DeVos’ home state, who described the success there in creating policies ensuring a “supportive environment” for 150,000 LGBTQ students.
“With a supportive environment,” he said, “transgender kids have no issues that other teenagers don’t have.”
The Trump move on transgender students has reverberated nationwide, drawing a massive crowd to a West Village protest outside the Stonewall Inn on the evening of February 23.
New York Governor Andrew Cuomo, in a press release the same day, termed the Trump administration’s action “misguided,” and said, “Today, I am urging the State Education Department to issue a directive to all school districts making it clear that – regardless of Washington's action – the rights and protections that had been extended to all students in New York remain unchanged under state law.”
Republican Congressmember Ileana Ros-Lehtinen of Florida, who has a transgender son, issued a scorching response saying, “This lamentable decision can lead to hostile treatment of transgender students and studies have shown that bullying and harassment can be detrimental to the emotional and physical well-being of teenagers.”
With Colorado Representative Jared Polis, an out gay Democrat, Ros-Lehtinen plans to reintroduce the Student Non-Discrimination Act, which would provide protections based on gender identity and sexual orientation.
Jackie Evancho, the 16-year-old singer who performed the National Anthem at the Trump Inauguration and has an older sister, Juliet, who is transgender, tweeted, “@realDonaldTrump u gave me the honor 2 sing at your inauguration. Pls give me & my sis the honor 2 meet with u 2 talk #transgender rights.”