by Harper Jean Tobin, Director of Policy, National Center for Transgender Equality
Gavin Grimm, a high school senior in Virginia, had to sit through two public school board meetings during his sophomore year while his neighbors openly discussed his body parts and restroom use while pointedly referring to him as a “young lady,” calling him a “freak,” or comparing him to someone who thinks he is a dog. Gavin is a transgender boy. He had used the boys’ restroom at school for weeks with the full support of his fellow students before those school board meetings, where the school district ultimately decided to bar him from the boys’ restroom. For the over two years since then, Gavin has had to make a “walk of shame” to the nurse’s office each time he needs to use the restroom, a daily reminder that his school thinks he isn’t worthy of being treated like his peers.
There are hundreds of thousands of transgender students like Gavin in schools all across the country. K–12 schools, as well as colleges and universities, began developing policies over a decade ago to answer everyday questions about supporting transgender students. Today, over 40 percent of U.S. K–12 students attend schools with local policies or statewide laws or guidelines that clearly support transgender students’ rights to learn in a safe environment and be treated according to their gender identity, including when it comes to using facilities.
Enter Title IX. Starting in 1999, a growing number of federal courts began to rule that federal sex discrimination laws applied to discrimination against transgender people. The rulings relied on two major Supreme Court precedents: Price Waterhouse v. Hopkins (1989), which held that discrimination based on gender stereotypes violates Title VII of the 1964 Civil Rights Act; and Oncale v. Sundowner Offshore Services (1998), which stated that Title VII applies to any gender-based discrimination, not just specific scenarios Congress imagined in 1964. Eventually, five federal appeals courts and over a dozen district courts agreed that Title VII, Title IX, and other sex discrimination laws applied to anti-transgender bias, while only a handful disagreed.
Between 2010 and 2016, several federal agencies adopted the majority view of the courts in guidance or regulations on a variety of sex discrimination laws, including the Departments of Justice and Education. Their May 2016 “Dear Colleague Letter” provided concrete guidance on how Title IX applied to issues like dress codes, school facilities and school records for transgender students. It was widely hailed by education and child health professionals’ groups. But a group of state officials brought a pre-enforcement challenge to the guidance before a judge with a reputation for issuing nationwide injunctions against Obama administration policies, who did just that.
The Trump administration rushed to rescind this guidance on Wednesday, leaving nothing in its place to guide schools. The Trump DOJ/ED letter to schools took no legal position at all on whether or how Title IX protects transgender students. Instead, it advanced three arguments: that treating transgender students fairly is a “states’ rights” issue rather than a civil rights issue; that the guidance caused litigation and was enjoined (albeit by one judge who was in the minority of jurists on the issue); and that the Obama administration didn’t use the formal rulemaking process (although both Republican and Democratic administrations have issued many similar guidance documents).
For schools, the withdrawal of the guidance is likely to cause confusion: they now have no federal guidance on issues that arise literally every day, involving hundreds of thousands of students, and they remain subject to Title IX liability. While schools that are already supporting transgender students will likely continue to do so, some administrators will undoubtedly be emboldened to single out transgender students and make their lives miserable, as will bullies their own age.
Then there is the question of what this means for other sex discrimination laws like Title VII and Section 1557 of the Affordable Care Act. While there are significant distinctions between them, an administration determined to harm transgender people could easily reverse its positions on them all. But with Section 1557 and in several other cases it would require a lengthy rulemaking process. Title VII is primarily enforced by the Equal Employment Opportunity Commission, which is independent of the White House (though President Trump will have the chance to name members in the coming years). So while there could be more dominos, they may not fall right away.
While the nation is still unmistakably moving toward greater understanding and acceptance of transgender people, today too many transgender students and their parents are “heartbroken and scared” about this attack on their rights, as more than 1,000 parents wrote to President Trump last week.
They may get some clarity soon from the Supreme Court, which on March 28 will hear arguments in Gavin’s case, Gloucester County School Board v. G.G.