Yesterday, the Trump administration rescinded Title IX guidance on how schools could avoid unlawful discrimination against transgender students. The joint letter that rescinded the guidance, signed by Sandra Battle of the Department of Education and T.E. Wheeler II of the Department of Justice, claims the departments need to “more completely consider the legal issues involved.”
This move is damaging and cruel. It will endanger and hurt trans youth in their daily lives. It will feed the school-to-prison pipeline. Long term, it would exacerbate the already high rates of homelessness, unemployment and suicide in trans communities. Fortunately, Trump is far from the final word.
Why the Guidance Mattered
The most well known part of the now-rescinded guidance addresses bathroom access for trans students. The guidance improved safety and bathroom access by clarifying that schools may not prohibit trans girl students from using girls’ bathrooms, trans boy students from using boys’ bathrooms or trans students from using multi-occupancy bathrooms.
But that is not all it did. It also pointed out the following:
- Schools may not exclude students from school activities, like graduation, because they are trans.
- Schools may not punish students for not conforming to stereotypical notions of masculinity or femininity.
- Schools must give current and former students an opportunity to update their records with accurate name and gender information.
- Schools may not violate a current or former student’s privacy through disclosing the student’s trans identity to others.
The Trump administration’s joint letter rescinded the entire guidance, not only the portion about bathrooms.
The guidance mattered. It provided important clarity for schools on their obligations. Students, teachers, parents and others used it as a tool when advocating for the needs of particular students. It probably helped some trans youth feel somewhat less hated, scared and alone.
One cannot go to school — or participate in any other form of public life — if one cannot use the bathroom. Biological necessities are not negotiable. We deny trans students education, as well as safety and dignity, if we force them to use a bathroom where they will be harassed, keep them from using any bathroom at all, or stigmatize them by only letting them use a single-occupancy bathroom. In the Sylvia Rivera Law Project’s video Toilet Training, Tommy Wang said: “Basically bathroom access was just another thing I had to deal with on top of everything. It just gave me another reason to not come to school.” Naomi Bhajamundi said: “I was afraid that if I went to a boys’ bathroom, that I would get beat up, and if I would go to a female bathroom, they would put me down. … Not only it’s not safe for me, it’s embarrassing. … It lowers my self-esteem.”
Punishing children for not acting stereotypically feminine or masculine greases the school-to-prison pipeline, particularly for trans and gender nonconforming students who are also Black, Latinx, Indigenous, Muslim, immigrants or people with disabilities. And long-term employment prospects suffer not only when youth cannot complete a high school education because of anti-trans bias, but also when violations of their privacy and inaccurate school records reveal them as trans any time they apply for a job or college.
Problems that start in schools contribute to longer-term issues. In a recent survey of trans people in the US, almost 30 percent of respondents reported having been homeless, more than a quarter were living in poverty and 40 percent had attempted suicide.
The Lack of Basis for Rescinding the Guidance
The justifications for rescinding the guidance have no basis.
The joint letter claimed that the legal issues need further consideration. They don’t. Trans issues under federal non-discrimination law have been considered for as long as federal non-discrimination law has existed. Discrimination against someone for being trans is discrimination on the basis of sex.
The joint letter claimed that “due regard” must go to states and localities in setting educational policy. That’s true, but beside the point. The federal government has the power to prohibit discrimination in schools, and Congress has exercised that power. States and localities may set educational policy, but their officials may not discriminate in violation of federal law.
Also, it is hard to see a states’ rights argument as anything other than mere posturing. Through its actions targeting immigrants in sanctuary jurisdictions, the Trump administration has made it clear that it is not concerned about traditional state or local powers when those powers interfere with the administration’s nativist, racist and anti-Muslim goals.
Perhaps most bitter of all, the joint letter stated that “withdrawal of these guidance documents does not leave students without protections from discrimination, bullying or harassment. All schools must ensure that all students, including LGBT students, are able to learn and thrive in a safe environment.” While technically true, a joint letter casting doubt on the right of trans students to go to the bathroom and go to graduation is fundamentally inconsistent with creating a “safe environment” “to learn and thrive.” As Gavin Grimm — the trans teen whose school bathroom access case will be heard by the Supreme Court — said in an interview with the Huffington Post, “As a transgender student and thinking about transgender students everywhere, hearing that your presidential administration has gone out of its way just to further discriminate against you … it’s very upsetting and disappointing news.”
What We Still Have
While the rescission of the guidance deserves condemnation, it has limits.
The joint letter did not — and could not — repeal Title IX. Federal law does already require schools not to discriminate against trans people. The guidance did not change the law, and its rescission doesn’t either. Soon, the Supreme Court will hear the case of Gavin Grimm. If the Court acts fairly, it will rule that Title IX goes at least as far as the now-rescinded guidance did in protecting trans youth. If the Court does not act fairly this time, it may in a future case.
The joint letter also did not — and could not — require schools to discriminate against trans students or stop complying with the guidance. Local school districts and states should still follow the guidance, and in fact do much more to support trans students than the bare minimum laid out in that guidance.
Most importantly, the joint letter did not — and could not — stop the grassroots efforts already going on around the country to support and defend trans youth.
The joint letter invited those who “have questions or are interested in commenting on this letter [to] please contact the Department of Education at firstname.lastname@example.org or 800-421-3481 (TDD: 800-877-8339); or the Department of Justice at email@example.com or 877-292-3804 (TTY: 800-514-0383).” People who oppose discrimination against trans students may want to take the opportunity to share their views.
There are many other more important actions that people have already started taking. For example, people are listening to and sharing the perspectives of trans people, and organizing to make local institutions safer for trans people. Legal organizations like the Transgender Law Center, Peter Cicchino Youth Project and the Sylvia Rivera Law Project continue to support trans people navigating legal problems. Most importantly, people are supporting incredible grassroots groups like Southerners on New Ground, Translatina Network and BreakOUT!. These groups lead the way in changing culture and shifting power, and deserve all the support we can give them.
All forms of creative resistance to harmful and hateful policies matter. As we fight hard for trans access to bathrooms, we need to remember that these struggles are not separate from those for access to bathrooms for farmworkers, pregnant workers and disabled people. As we fight hard against school discipline of kids for not matching gender stereotypes, we also need to fight hard against police presence in schools, the racial and disability-based profiling that routinely occurs in school discipline and police action, and the escalating threats to immigrant students. Trans people are everywhere, in every community, and all of our communities need all of us.