More Than a “Bathroom Battle”: An Update Now That Sessions is in Charge of the DOJ

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A Sad, but Unsurprising Update: On Wednesday, February 22, 2017, the Trump Administration withdrew the guidance that made it clear that Title IX protects transgender students.

For more background on the guidance, and why it was important, keep reading (a post from February 13, 2017, before the Trump Administration officially withdrew the guidance):

Donald Trump’s choice of Jeff Sessions as the head of the United States Department of Justice (DOJ), confirms what we knew would be true the minute Trump seized the electoral college: our rights as Americans are threatened.

The DOJ is a federal agency with broad powers, including (but not limited to) the prosecution of federal crimes, the promulgation of regulations, the provision of grants to meet civil, criminal, and juvenile justice needs, oversight of various law enforcement agencies (like the FBI), and investigations (such as “pattern or practice” investigations into police misconduct).

It’s hard to believe a man like Jeff Sessions, someone who was once deemed too racist to be a federal judge, could possibly lead an agency with “Justice” in its title. His nomination to the federal bench in 1986 prompted Coretta Scott King to write a letter to the Senate Judiciary Committee. In this letter (available here), King assailed Sessions’s conduct as a U.S. Attorney, “from his politically-motivated voting fraud prosecutions to his indifference toward criminal violations of civil rights laws,” saying, “he lacks the temperament, fairness and judgment to be a federal judge.”

His nomination to the federal bench failed, but he became a U. S. Senator from Alabama, and now he is the Attorney General of the United States. The Senate confirmed his nomination after Sessions’s colleagues voted to silence Senator Elizabeth Warren for daring to read Coretta Scott King’s letter on the Senate floor.

So, what can we expect from Sessions as the Attorney General of the United States?

As the National Law Journal wrote last November in What to Expect from a Sessions Justice Department, “Immigration, violent crime, and undoing President Obama’s executive actions are expected to be on [Sessions’s] priority list if he’s confirmed.”

This agenda would be a departure from the DOJ’s actions during the Obama Administration, which sued states over race-based voting restrictions, made an effort to reduce racial profiling, investigated police misconduct, and fought for the rights of transgender individuals.

We are only in the early days of the Sessions DOJ, and already the signs suggest that Sessions does not care about equality for all Americans. Last Friday, the day after Sessions took over the DOJ, the Agency withdrew its request asking the 5th Circuit to narrow a temporary injunction that blocked the Obama Administration’s guidance on transgender students’ rights. The joint filing states that “the parties are currently considering how best to proceed in this appeal.”

I wrote about this case over the summer in More than a “Bathroom Battle”: The Rights of Transgender Children at School. At the time, the district court judge in Texas had just imposed a nationwide injunction that (1) allows Texas and other states to force transgender students to use bathrooms that do not match their gender identities and (2) prevents the United States government from investigating this type of discrimination across the country.

This lawsuit came in response to the DOJ and the U.S. Department of Education’s guidance document (May 2016), which clarified that Title IX prohibits schools from discriminating against students on the basis of their gender identity, defined as “an individual’s internal sense of gender” that “may be different from or the same as the person’s sex assigned at birth.”

From the start, this case was challenging for the government to defend because many people seemed to misunderstand the issue, thinking that the Obama Administration’s guidance forced schools to allow boys to use the girls’ bathroom, which seems to offend some people. But here’s the language from the guidance (a guidance I presume will disappear under Trump):

Restrooms and Locker Rooms. A school may provide separate facilities on the basis of sex, but must allow transgender students access to such facilities consistent with their gender identity. A school may not require transgender students to use facilities inconsistent with their gender identity or to use individual-user facilities when other students are not required to do so. A school may, however, make individual-user options available to all students who voluntarily seek additional privacy.

Really, all the guidance did was clarify that schools must permit people who identify as girls to use the girls’ bathroom and those who identify as boys to use the boys’ bathroom. That’s pretty narrow.

I don’t purport to be an expert on trans rights, but I make an effort to understand the issue as best I can as a cisgender person (and I’m always learning). I’ve found that literature is helpful in this regard. For example, George by Alex Gino introduces us to a fictional transgender child who shows us some of the harms of forcing a child to use a bathroom that does not match their gender identity:

[George*] stumbled, sobbing, into the bathroom—the boys’ bathroom. Her lips trembled and salty tears dripped into her mouth. George hated the boys’ bathroom. It was the worst room in the school. She hated the smell of pee and bleach, and she hated the blue tiles on the wall to remind you where you were, as if the urinals didn’t make it obvious enough. The whole room was about being a boy, and when boys were in there, they liked to talk about what was between their legs. George tried never to use it when there were any boys inside. She never drank from the water fountains at school, even if she was thirsty, and some days, she could make it through the school day without having to go once.

In this paragraph, we can clearly see how traumatic it is for this child to use the wrong bathroom. We can also see that it’s a health hazard. No one should go an entire day at school without drinking water or using the restroom.

George–who prefers to be called Melissa–is fictional, but there are children in our schools who face similar challenges in real life. It is a shame that our children have a government that isn’t likely to secure or enforce their rights.

__________________

*I inserted “George” at the beginning of the quote because that is the name that appears throughout the paragraph in the novel. However, Melissa is the name the child prefers to use. For more on the recalcitrance of the name “George,” see George or Melissa? It Matters.

**For more uplifting news, see Authors, Does Donald Trump Care About Your Name Change?

21 thoughts on “More Than a “Bathroom Battle”: An Update Now That Sessions is in Charge of the DOJ

  1. Pingback: More than a “Bathroom Battle”: The Constitutional Rights of Transgender Children at School – The Misfortune Of Knowing

  2. It breaks my heart that we have taken such a step back. I read George a few months ago and it really opened my eyes to the “bathroom issues.” I never really stopped to think the amount of stress and shame that surrounds an individual who has to use the opposite restroom of the gender they identify with.

  3. Thanks for writing about this.
    Sessions as the head of the DOJ is terrifying and should prove that Trump was who he said he was all along. Anyone surprised by Trump’s actions as president was not paying attention the past 12 months. :/

    1. I know! I have no idea why anyone is surprised by Trump’s bigoted, disorganized, and vindictive policies and actions. It’s what he promised to do during the campaign.

  4. Scary, scary, scary, scary. Sad, yes, but scary even more so. Every single group has fought over and over again for acknowledgement of their human rights, to be treated as just ordinary people: African-Americans, women, every other minority group, every religion that doesn’t conform with the established norm at a given time, gender equality, and on it goes. And as rights are finally won, they still remain so precarious. There can never be a time for complacency, it seems. The rest of the world does wonder how the self-proclaimed leader of the free world, a country that is meant to be a beacon for freedom, can define who has rights so narrowly and with such pettiness and meanness. I also wrote a blog about the bathroom bills when they first started appearing (https://robbyrobinsjourney.wordpress.com/2016/04/29/bathrooms-for-everyone-good-for-you-good-for-business/). I know transgendered people, who are some of the bravest people I know, just trying to lead their lives. Rereading my post from last April reminds me of how it was the corporations and sports teams who took the lead in pushing back by hitting those states in their pocketbooks. It’s an interesting world when the moral authority falls to for-profit corporations!

    1. Well said, Jane! You make an interesting point about for-profit corporations taking the lead in the fight against discriminatory bathrooms. In my work, corporations are usually the bad guys (fighting state legislation on equal pay and reasonable accommodations for pregnant workers, for example), but it is nice when we’re on the same side.

  5. That Sessions was approved is infuriating. That he has already begun doing his dirty work, I just, I have no words. His entire hearing process and the silencing of Warren, Grr. On the plus side it revealed the republican senators for the horrible people that they are.

    1. Sessions’s confirmation and the silencing of Warren definitely revealed how horrible the Republican Senators are. The registered Rs I know personally aren’t bad people and typically want sensible policies (such as moderate gun reform, access affordable healthcare), but the elected Rs are so tainted by special interests (like the NRA and big Pharma) that they’ve lost their compassion for their constituents.

  6. It breaks my heart to think of all the damage this Attorney General is going to do. I don’t know how to pick which of the terrible things to bring up at my senator’s next town hall, because there have been so many terrible things my senator has said nothing about because he’s a weenie, but Jeff Sessions has to be pretty high up on the list.

    1. It’s wonderful that your senator is holding a town hall. One of my senators hasn’t held one in ages and doesn’t seem to have any plans to do it. So far, he’s voted to support every single thing Trump has done. It’s disgusting.

    1. Agreed. There is hope, though. I see it in the townhalls, the protests, and the increased civic engagement coming from people who weren’t involved in those types of activities before.

  7. Jaclyn

    Wise and thoughtful as always, A! Have you read “Becoming Nicole” yet? I just read it last month (it had been on my TBR for awhile) and it was a sensitive and well-researched discussion of gender identity and science, told against the backdrop of one transgender girl’s journey (and her family’s journey). I thought it was a wonderful book.

    I’m going to be watching this DOJ very closely, especially on trans rights. During my very brief stint as an education lawyer (during my two years practicing in Buffalo) I spoke on transgender student concerns many times, before educators and administrators. I’ve been following transgender rights closely ever since. I think it’s going to be one of the major civil rights battles of this (hopefully short-lived) Administration.

    1. Becoming Nicole has been on my TBR, but I need to read it. I’m glad to hear how much you liked it. I hope stories like that will help educate people about trans issues. It’s interesting that you’ve spoken to educators and administrators about this subject. I hope they were open-minded. I agree with you that this will be a major civil rights battle in this administration, whether Trump or Pence (*shudder*) is at the helm.

  8. I try to be a really positive, optimistic person, even occasionally crossing the line into annoying. But I just can’t see a way through the next four years, unless you’re a straight, white, cisgender Christian, and also male (though I do come across a worrisome number of white women who think this is all just fine.)

    1. I agree with you, but I think there are signs of hope. People are more engaged now in the political process and other forms of activism than they were before. I love seeing the footage of the townhalls, and I’ve been participating in more protests than I ever have before. It’s comforting.

      1. It’s definitely an interesting study in how people react when they’ve simply had enough! If I wasn’t so worried (and you’re right in your comment above, Pence is no better for different reasons) it would be so much fun to watch it all unfold and see how things will ultimately end up.

    1. That makes me so sad. To some people, the Title IX guidance is just a few pieces of paper, but to the people whose lives it directly affects, it’s so much more than that. I can’t understand how people on the other side of this issue fail to see that.

      Then there are the people who think this guidance somehow oppresses them. I just don’t get it. It doesn’t require unisex bathrooms. It doesn’t encourage predators (as though those people are discouraged by a women-only sign!). The only thing this guidance did was clarify the rights transgender children have at school, and now the Trump Administration is going to take it away.

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