On Wednesday night, the U.S. Department of Justice and U.S. Department of Education issued a joint Dear Colleague letter withdrawing federal guidance promising transgender public school students access to use the bathrooms and locker rooms of the gender with which they identify. The Obama administration controversially extended such protection last year, warning that schools that failed to comply were at risk of losing federal funding for violating Title IX’s prohibition of discrimination based on sex.
Yesterday’s letter claimed the previous 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.” As a result, the Trump administration will give “due regard for the primary role of states and local school districts in establishing educational policy.”
Civil liberties and LGBT rights groups are understandably up in arms after the letter. However, the effect of the withdrawal should not be overstated. The effect of the letter will likely be marginal considering how divisive Obama-era guidance was from the outset.
First, the Obama administration’s transgender guidance was not universally enforced. Thirteen states challenged the ruling, a federal judge in Texas put them on hold, and school policies on the rule widely varied. Currently, a case is pending before the Supreme Court on the issue. The plaintiff, 17-year-old trans student Gavin Grimm, was denied access to the boys’ bathroom after parents started complaining.
Civil liberties groups like the ACLU assert that the rights of transgender students like Grimm should already be protected under current law. From the ACLU’s website:
“The Trump administration does not have the authority to undo legal protections for trans students. Trans students are protected by the U.S. Constitution and Title IX. School districts across the country must still comply with the law. Schools that have done the right thing by treating trans students with dignity and respect should continue to do so. Schools that discriminate against trans students will continue to face liability in court. Barring trans students from single-sex spaces like restrooms and locker rooms that are consistent with the gender the student lives every day, is a violation of that student’s constitutional and civil rights.”
If this interpretation is correct, the Trump administration’s letter will have little consequence in the long-term, and the Supreme Court will rule in favor of Grimm and other trans students after his case is heard next month. If not, then the status quo will continue, with some states and localities allowing trans students access to the facilities of the gender they identify with, and others not.
Indeed, several state and local education agencies are already vowing to keep the Obama-era protections in place, regardless of what happens. Attorney Generals of the states of Washington, New York, and New Mexico told Buzzfeed News that the protections will remain in place. Major metropolitan school districts like Los Angeles, Chicago and New York are similarly assuring protection.
In any case, the Trump letter is nowhere near the end of the battle for transgender students. The wide variance of policies regarding trans students would have been the reality regardless of whether the Obama administration’s guidance remained in place or not. For better or worse, there will likely not be uniformity in how trans public school students are treated by their administration until the Supreme Court rules definitively on the issue.