by Lauren A. Khouri, Associate Attorney, Correia and Puth
This past week, the U.S. Departments of Education and Justice, under the direction of President Trump, withdrew guidance to schools that receive federal funding that Title IX requires transgender students the right to use bathrooms consistent with their gender identity. In withdrawing the guidance on transgender rights, the Trump administration showed neither an understanding of the laws that protect against sex discrimination nor the key role of government in protecting students’ civil rights.
First and foremost, the Trump administration’s actions do not change the law. Title IX of the Education Amendments of 1972 – like Title VII of the Civil Rights Act of 1964 – has long protected the rights of transgender students to use restrooms and facilities consistent with their gender identity. By its language, Title IX prohibits schools that receive federal funding from discriminating “based on sex.” Over the past two decades, federal courts and agencies have recognized with near unanimity that federal laws prohibiting sex discrimination, including Title IX, prohibit discrimination against transgender persons. For example, the Supreme Court long ago recognized that it is illegal for an employer to deny employment opportunities or permit harassment because a woman does not dress or talk in a feminine manner, because this is discrimination based on sex. Likewise, federal trial and appellate courts have found that it is impossible to consider someone’s gender identity – a person’s innate identification of one’s gender – without considering his or her sex. Indeed, transgender people are defined by the fact that their gender identity does not match the biological sex given to them at birth. Therefore, courts have reasoned, discriminating against someone based on their gender identity is synonymous with sex discrimination prohibited under the law.
In May 2016, the Departments of Justice and Education under the Obama administration issued a “Dear Colleague” letter to schools receiving federal funding to make clear their Title IX obligations with respect to transgender students. Specifically, the letter stated that compliance with Title IX meant guaranteeing transgender students have access to the appropriate restrooms and facilities consistent with their chosen gender identity. Despite years of precedent, the Trump Administration now claims that it needs to “further and more completely consider the legal issues involved.”
While the Trump administration's position does not change the law, the move does alter the government’s recognition of civil rights protections and support of trans children and their families. Actions – particularly the actions of government – have consequences. For example, this week JAMA, a research institute at Johns Hopkins University, found that marriage laws that recognize same-sex marriage are tied to fewer teen suicide attempts. Analysis of data from 47 states found that same-sex marriage policies were associated with a seven percent reduction in the proportion of all high school students reporting a suicide attempt within the past year. The study also found that these positive results persisted for two years after legalization, suggesting that social and political backlash against same-sex marriage did not worsen mental health outcomes and positively affected LGBT youth.
This study confirmed what we already know to be true: what our laws do and what our government leaders say have significant consequences. As states and the federal government pushed for increased recognition of civil rights protections for minority communities, individuals’ self-esteem grew and children that previously felt marginalized began to feel acceptance and a connection to society.
The exact opposite is also true. When laws or government leaders flame the fan of hate, innocent people suffer. The Trump administration’s decision to withdraw support for transgender protections does nothing but openly target students who are already face some of the highest rates of bullying, harassment and violence. Transgender people face extraordinary levels of violence at the hands of others and high levels of depression. In a national study, 40 percent of transgender adults reported having made a suicide attempt and 92 percent of these individuals reported having attempted suicide before the age of 25.
We should be doing everything we can to enforce the law, create a safe and inclusive space for transgender children, and, at all levels of government, send the message that transgender children and their families are loved and welcomed in their schools and communities. At the most basic level, the federal government is obligated to follow and enforce the law. It also has the critical responsibility to ensure that all students have access to a safe, supportive and inclusive educational environment. This responsibility and obligation to lead with decency only increases when considering how to treat marginalized communities, which includes protecting and supporting transgender students.
To trans students and their families, please know that you are perfect, you are beautiful and you are welcome just the way you are. We stand with you – even if the Trump Administration will not.