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Trump And Transgender Rights: What Just Happened?

Feb 23, 2017
Originally published on February 23, 2017 2:57 pm

On Wednesday, the Trump administration made big news regarding the rights of transgender students. But what exactly changed? And what does it mean for students in school districts around the country? Here's our cheat sheet.

1. What just happened?

Last May, the Obama administration sent what's called a "Dear Colleague" letter to school districts. The letter, from the Justice and Education departments, made clear that the administration was interpreting Title IX, the law that prohibits sex discrimination in education, to include transgender students.

The letter stated that to be in compliance with the law, every K-12 school district, state education association and high school athletic association in the country "must not treat a transgender student differently from the way it treats other students of the same gender identity."

This week the Trump administration officially rescinded that guidance. This does not change the law. What it does is give states and districts more flexibility in their interpretation of Title IX and how they choose to accommodate transgender students.

2. Is this just about bathrooms?

No, not at all. Title IX also covers access to single-sex facilities like locker rooms and the right to participate in sports. The Obama administration's guidance also spelled out other steps that schools should take to avoid discrimination, like allowing all students to attend prom or graduation in the clothing that makes them feel most comfortable.

The American Academy of Pediatrics summarized the public health issues at stake today in its critical statement about the Trump administration's decision:

"Transgender children are already at increased risk for violence, bullying, harassment and suicide. They may be more prone to depression and engaging in self-harm. ... Policies excluding transgender youth from facilities consistent with their gender identity have detrimental effects on their physical and mental health, safety and well-being."

3. What policies do school districts around the country currently have regarding transgender students?

There's a wide range. The nation's three largest districts, New York, Los Angeles and Chicago, have comprehensive policies that cover not just restrooms, locker rooms and sports teams but issues of privacy, bullying and harassment.

Information about a student's actual or perceived gender identity or expression should be shared "only on a need to know basis," says the policy in LA.

"Students should be addressed by school staff by the name and pronoun corresponding to their gender identity that is consistently asserted at school," New York City's policy states.

Chicago's policy calls for schools to convene an administrative support team, including the principal and parents or guardians, to address each transgender student's individual needs.

The Gay, Lesbian and Straight Education Network, an advocacy group, tracks which states have created laws that prohibit bullying, harassment and discrimination on the basis of gender identity. These are clustered on the coasts but also include Arkansas, Iowa and Illinois. North Carolina, the home of HB2, or the "bathroom bill," also has a law that protects students from bullying on the basis of gender identity.

Legal complaints against some school districts in several states have charged that transgender students have been disciplined for using the "wrong" restroom, isolated on school trips that involved overnight stays, referred to by their birth name and pronoun and excluded from school activities in other ways.

4. How does all of this relate to the case now headed to the Supreme Court?

Gavin Grimm, 17, is a transgender senior at Gloucester High School in eastern Virginia. After parents complained that Grimm was using the boys' restroom at school, the school board ruled that he had to use a private, unisex bathroom instead.

"That's basically saying, you can't use the restroom with the rest of the kids," Grimm told NPR's Robert Siegel last year. "I'm not unisex. The alternative facility was a unisex bathroom. I'm not unisex. I'm a boy. And there's no need for that kind of ostracization."

Grimm sued and is being represented by the American Civil Liberties Union. Last year, the U.S. Court of Appeals for the 4th Circuit ruled in Grimm's favor, citing the Obama administration's guidance on Title IX that has now been rescinded. The Supreme Court agreed to hear the case, and oral arguments are scheduled on March 28.

5. What is likely to happen next for transgender student rights?

A few things. First, that Supreme Court case. The 4th Circuit's ruling in Grimm's case was based on the Obama guidance. Rescinding it complicates things for Grimm's legal team. Regardless of the Trump administration's move, though, the Supreme Court now has before it the big question: Does the word "sex" as it is used in Title IX include gender identity?

In August, a federal district judge in Texas ruled that the Obama administration had overreached, and paused its Title IX guidance. There is genuine disagreement over how broadly courts should interpret "sex," and that legal disagreement will persist until the Supreme Court puts it to rest.

In the meantime, states and districts can now set their own policies, which may or may not include equal access to facilities on the basis of gender identity.

Education Secretary Betsy DeVos made it clear in her statement on the new Title IX guidance that she considers "protecting all students, including LGBTQ students, not only a key priority for the department, but for every school in America. We owe all students a commitment to ensure they have access to a learning environment that is free of discrimination, bullying and harassment."

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