Well-intended as they might have been, President Barack Obama’s protections for transgender students were on shaky ground from the get-go.
As quickly as the Obama administration rolled out the protections last year, the Trump administration on Wednesday revoked them, saying they were devised without enough legal analysis. All told, it took little more than the stroke of the new attorney general’s pen to undo one of Obama’s signature civil rights initiatives.
Then again, it didn’t take much more than the stroke of a pen to enact the protections, either. And that’s ultimately what doomed them when President Trump took office.
Last May, as national debate over transgender rights was reaching a boiling point, the Obama administration directed schools across the country to allow transgender students to use bathrooms, locker rooms and other facilities that match their gender identity rather than their sex assigned at birth.
The directive came in the form of a “Dear Colleague” letter to educational institutions. In it, administration officials said barring students from bathrooms that matched their gender identities amounted to sex discrimination, violating the Title IX federal anti-discrimination law.
Schools were required to provide transgender students “equal access to educational programs and activities even in circumstances in which other students, parents, or community members raise objections or concerns,” the letter read. “The desire to accommodate others’ discomfort cannot justify a policy that singles out and disadvantages a particular class of students.”
Stern language, to be sure. But it didn’t carry the force of law. The letter was merely “guidance” explaining the administration’s position on the rights of transgender students.
Still, the threat to schools was clear: play by our rules or we’ll cut off your federal funding.
The LGBT community and allies cheered the new guidance, saying it was necessary to make transgender students feel safe and welcome.
But social conservatives and others argued it amounted to an intrusion by the federal government, and in some cases a trampling of state and local policies. Texas Lt. Gov. Dan Patrick (R) called it “blackmail.” In a post that proved somewhat prescient, Washington Post blogger Ed Rogers wrote at the time, “This is exactly the type of rule-by-fiat approach that has given rise to the frustration that has now produced Donald Trump.”
From one perspective, the Obama administration kicked a hornets nest. The directive came at a time when the country was embroiled in a bitter fight over transgender rights, prompted in part by debate over North Carolina’s “bathroom bill,” which bans transgender people from using bathrooms that don’t correspond to their biological sex. On top of that, multiple lawsuits addressing bathroom access were already underway in federal court, raising questions about whether such a directive was necessary.
But supporters contended the protections could hardly have come at a better time. Officials in the Justice Department’s civil rights office said they’d received a surge in discrimination complaints from transgender students and questions from teachers about how to support them. The nation’s largest teachers union backed the directive, saying transgender students had the right to safely express their gender identity in school.
Less than two weeks after the letter was issued, 11 states filed a lawsuit saying the directive had “no basis in law” and claiming it would bring “seismic changes” to the nation’s schools. Later in the summer, another 10 states filed a similar lawsuit, alleging the administration had exceeded its authority.
In court, the government’s attorneys struggled to explain the thrust of the guidance. Judge Reed O’Connor of the U.S. District Court for the Northern District of Texas balked at the government’s argument that sex discrimination under Title IX included discrimination based on gender identity, since nothing in the law mentioned sexual orientation. He also seemed puzzled about how the government expected schools to respond to the guidance.
One particularly revealing exchange came during oral arguments in August, when O’Connor asked if the government wanted schools to consider changing their policies, even though they had received “only guidance and interpretative documents” from the administration.
“Of course, we — we would prefer that school districts and other stakeholders comply with our understanding of the law,” Justice Department attorney Benjamin Leon Berwick responded. But if the states “believe that our understanding is incorrect,” he continued, “they suffer no harm at this time or there is nothing forcing them to proceed as they have been proceeding.”
The judge seemed confused, at one point referring to the guidance as “directives or rules or whatever it is.” He continued to press Berwick about how schools were supposed to react:
THE COURT: And so these guys are saying I’m going to have to change my bathrooms, I am going to have to get new signs, I’m going to have change my policies, I’m going to have to get rid of old policies, implement new policies —
MR. BERWICK: So that’s where I think this case differs, Your Honor, because — because those guidance documents don’t — they are there not forced to do any of that now. Now, of course —
THE COURT: They are not — What did you say?
MR. BERWICK: They are not forced to do any of that at the moment. Now, of course, the Government would like them to comply with the law but the fact is, if they so choose, if they believe their interpretation of the law is correct they can wait for initiation of an enforcement action and then make their argument in context of the enforcement action and they lose nothing.
Ultimately, O’Connor ruled against the administration. In August, barely three months after the “Dear Colleague” letters went out, the judge issued a nationwide injunction prohibiting the government from enforcing the directive. The judge said administration officials should have treated it more like a formal agency rule, allowing schools and members of the public to weigh in before it took effect.
The protections were still blocked by the injunction on Wednesday, when the Trump administration sent a “Dear Colleague” letter of its own instructing schools to disregard what the Obama administration had told them. It didn’t offer any new guidance, instead saying only that the old directive needed to be withdrawn because it created confusion, drew legal challenges and didn’t allow enough input from states and school districts, as The Post reported.
Before it was revoked, the Obama administration’s directive did prompt some school districts to revise or update their policies to accommodate transgender students accordingly. A court also cited the administration’s position in a ruling in a lawsuit by Gavin Grimm, a transgender high schooler who sued his school for barring him from the boys’ bathroom. But the directive’s lasting impact seems to have been more symbolic than legal. Many transgender students and their allies said the measure made them feel validated, and assured them that they had an ally in the federal government.
“This guidance was developed and issued to support transgender students because the reality is that transgender students are far more likely to face severe violence and discrimination at school than their peers, placing them at greatly increased risk of suicide and self-harm as a result,” Eliza Byard, executive director of the advocacy group GLSEN, said in a statement Wednesday. “When students are allowed to be themselves, they thrive. This guidance changes and saves lives and hurts no one. It should not be withdrawn.”
Grimm, whose lawsuit over bathroom rights is slated for oral arguments in the U.S. Supreme Court next month, called the directive “incredibly empowering” and said he was disheartened to learn about the Trump administration’s decision.
“It certainly bolstered the hope,” Grimm told The Post Wednesday, “that the future for transgender students was looking up in a way that it hadn’t been previously.”