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?