After the Trump administration revoked federal guidelines on transgender student rights, officials from New York to Washington to Tulsa moved quickly this week to assure their communities that they would continue to allow students to use school bathrooms aligned with their gender identity.
But other districts had never complied with the Obama administration’s guidance after it was issued in May — and they don’t plan to do so now.
That leaves intact a patchwork of policies on transgender student accommodations that varies widely across the country. Advocates for these students say the result is that many will be forced to go through school being called by what feels to them like the wrong name and being required to use what they feel are the wrong bathrooms.
Until this week, the federal government had provided a uniform standard for how schools should resolve sensitive questions concerning transgender students.
“Having some type of national voice indicating that this is how we want students to be treated created at least something that everyone could look to,” said Jayne Ellspermann, a Florida principal who is president of the National Association of Secondary School Principals. “Basically, that compass has been removed.”
Education Secretary Betsy DeVos said that although the guidance was rescinded, schools still have an obligation to protect transgender students from bullying and harassment.
“I have dedicated my career to advocating for and fighting on behalf of students, and as Secretary of Education, I consider protecting all students, including LGBTQ students, not only a key priority for the Department, but for every school in America,” DeVos said in a statement.
On Thursday, DeVos told conservative activists at a gathering near Washington that the Obama guidance was a “very huge example” of federal overreach and that the issue should be dealt with “at a personal level, at a local level.”
Transgender youths are at a greater risk of depression and suicide than their peers, and surveys show that they face high rates of bullying and harassment.
Fourteen states and the District of Columbia have laws that give explicit protections to transgender students, according to the Human Rights Campaign. Eleven other states are considering legislation to create restroom restrictions for transgender people, including schoolchildren. Some would penalize schools that violate those restrictions.
About 40 percent of schoolchildren are in districts that explicitly protect transgender students, according to an estimate from the National Center for Transgender Equality. In many of those places, policies will remain the same.
“Our schools have to be safe and inclusive places if we want our kids to learn and be successful,” said Emma Garrett Nelson, spokeswoman for Tulsa Public Schools.
At Atherton High in Louisville, a site-based council developed a policy giving transgender students access to the bathrooms of their choice three years ago. That meant the school complied with Obama’s guidance as soon as it was issued.
“Our policy has not changed, and I wouldn’t foresee it changing regardless of any change in the guidance document,” said Thomas Aberli, the school’s principal at the time.
Obama’s guidance drew legal challenges from several states, leaving schools uncertain of their obligations and hesitant to wade into such a fraught issue. The uncertainty deepened in August, when a federal judge temporarily prohibited the Education Department from enforcing the guidance nationwide.
Amy Adams, the mother of a transgender girl in Stafford County, Va., said school officials continued to bar her daughter from the girls’ bathroom even after the Obama action, saying they were waiting on a ruling from the Supreme Court. Her daughter had briefly used the girls’ bathroom in elementary school until other parents protested. That put the Adams family in the middle of a public fight that inspired a state legislator to propose a bill to fine transgender people for using public bathrooms — including those in schools — that do not correspond to their “anatomical sex.” The bill was unsuccessful.
Adams said that the Obama administration’s action last year had given her hope.
“When you live in a state like Virginia, which has no state protections, where you can be fired or denied housing based on if you are LGBTQ, where some lawmakers have specifically targeted your child, or if you live in a school district that has denied your child equal access, the feeling was relief, because our kids were finally seen,” Adams said.
But after the Trump administration’s shift, Adams said, she no longer has the federal backing for her efforts to persuade school officials to allow her daughter to use the girls’ bathroom.
In Utah’s largest school system, the Alpine School District, the Obama guidance enraged some board members, who viewed it as federal overreach. The district never changed its practice of accommodating transgender students on a “case by case” basis — allowing them to use bathrooms designated for single users, for instance — said board member JoDee Sundberg. She said that to her knowledge, no transgender students had sought to use student bathrooms that align with their gender identity.
“We felt that all of our students’ needs are being served,” said Sundberg. “We don’t take our direction from Washington … We will do what’s best for our community, the culture in our community and the students in our community.”
With Trump’s action, school districts that had passed bathroom restrictions in conflict with the Obama guidance no longer face the possibility of losing federal funding.
Last year, community members in rural Grayson County, Va., grew fearful that students and visitors to schools would pretend to be transgender to gain access to bathrooms and locker rooms of the opposite sex to take video or assault students. In response, the school board passed a policy requiring students to use bathrooms according to the sex on their birth certificate, defying the Obama guidance.
Kelly Wilmore, superintendent of Grayson schools, said he hopes Trump’s action enables the district to move on to what he considers more pressing matters, like the budget.
“I think the feds should stay out of our business,” Wilmore said. “I would be elated if I could talk about anything but this.”
Trump’s action also could lead to a rollback of transgender-friendly policies in some school districts.
In 2015, schools in the Chicago suburb of Palatine, Ill., began allowing a transgender girl to change in the girls’ locker room in response to pressure from the Obama administration. That decision ignited protests and a lawsuit from parents, who thought that invaded their children’s privacy. Now three candidates are running for the school board with a promise to adopt a policy ensuring that single-sex bathrooms and locker rooms could not be used by “students of the opposite biological sex.”
Civil rights advocates say the withdrawal of the Obama guidance does not strip students of protections under Title IX, the federal law that prohibits sex discrimination in public schools. Ultimately, it may be up to the courts to determine the reach of Title IX in transgender student rights.
A decision could come as early as this year in a Supreme Court case brought by Gavin Grimm, a transgender teenager who sued his Virginia school board after he was denied access to the boys’ bathroom. Arguments in that case are scheduled for next month.