The Trump Administration Is Not Attacking Transgender Students
Last week, the first significant education policy action of the Trump administration came in the form of a “Dear Colleague” letter that rescinded Obama administration guidance on transgender student rights. In short, the Obama administration had directed public schools to allow transgender students to use bathroom and locker room facilities based on their gender identity rather than biological sex. The Trump administration is now leaving the decision up to states and districts. Predictably, the move has sparked an uproar, with opponents calling it a “mean-spirited attack” and proof that the administration “has decided to turn its back” on transgender youth.
The administration is neither attacking nor turning its back on transgender youth. Rather, its decision allows states and districts to fulfill their responsibility to create safe and nondiscriminatory schools for all students when delicate balances are required. These issues are difficult and important, and pretending they can be effectively managed from Washington ignores the complexities of protecting all students, transgender or otherwise.
This school battle started last May when the Department of Education (ED) and Department of Justice (DOJ) sent a joint “Dear Colleague” letter to all public schools in the wake of North Carolina’s infamous “Bathroom Bill” (HB2). The guidance letter asserted the administration’s interpretation that gender identity is included under Title IX’s sex discrimination protections and that transgender students are a “protected class” comparable to other classes such as race, religion and national origin. This guidance explicitly addressed which bathroom students may use, but also extended to other facilities such as locker rooms and showers. If schools did not comply, ED could withhold federal funds and DOJ could prosecute them.
The emergence of ham-fisted laws like HB2 necessitated some response to protect transgender students. The fatal flaw in the Obama guidance did not lay in its intent, but in its legal and enforcement overreach.
Some school districts, states and Congressional Republicans argued these federal agencies were improperly asserting as law, without public comment or deliberation, the administration’s questionable interpretation that transgender students were a protected class. They further objected that the guidance conflicted with some existing state laws, creating a Gordian knot for school districts. Two weeks after the letter was issued, thirteen states filed a lawsuit to stop it, arguing that gender identity was distinct from biological sex in other federal laws and guidance. Last August, a federal judge sided with the plaintiffs and placed an injunction against the guidance.
Before the judge's decision, the enforcement of the Obama-era guidance revealed how absolute it was, going far beyond rolling back the controversial NC bathroom bill that precipitated it. It extended transgender students unrestricted access not only to bathrooms but also to locker room facilities, including shower areas, used exclusively by minors. ED’s Office for Civil Rights’ (OCR) handling of a case against Illinois District 211 illustrates how extreme enforcement could be.
Despite District 211’s significant efforts to accommodate a transgender high school “Student A’s” rights, including access to girls’ bathrooms and athletic teams, OCR found the district derelict for restricting access to the girls’ locker room. District 211 argued that granting the student access “would expose female students as young as fifteen years of age to a biologically male body.” But OCR found that argument “unavailing in this case,” despite the fact that a swimming unit is a required part of PE in the district, meaning the policy affected with whom students would undress. Against its judgment and without oversight of the courts, District 211 acceded to OCR’s demands.
The Trump administration rescinded this guidance “to further and more completely consider the legal issues involved,” and rightly so. The decision allows school officials to balance transgender rights with the rights of other students, makes room for district officials to consider the special circumstances these issues present in public schools and relies on the law rather than bureaucratic fiat from Washington to protect transgender students.
Pretending the decision is based on callous disregard for students’ rights glosses over how tricky these issues are. It’s disingenuous to pretend the rights of transgender students are the only ones at play here. After District 211 complied with OCR demands, parents sued to protect their biologically female students’ privacy in locker rooms. Bathrooms are one thing, since arguably a modicum of privacy can be retained, but public locker rooms and showers present much greater privacy risks that the prior guidance ignores. Rescinding the guidance makes room for schools to balance the rights of all students.
It’s also foolish to pretend these issues don’t apply differently in public schools than in other social settings. K-12 schools mostly educate minors, and school officials supervising them bear a greater burden to protect their privacy than would be required in public settings that deal with adults or children under the supervision of parents. The fact that the state requires minors to attend school, and typically provides little choice between schools, increases its responsibility.
Finally, it is false to suggest that transgender students were protected by the Obama administration’s regulatory fiat, or that its removal does away with their protections. That guidance was blocked by the courts and therefore not in effect. Today, just like last week, transgender students’ rights are protected by existing district policies, federal and state laws and OCR, which reiterated its responsibility to protect all students in rescinding the guidance.
Working through the appropriate protections for transgender students will not be smooth or simple. They, like their peers, deserve the protections and liberties, and efforts like HB2 do impinge on reasonable accommodations for them. However, they will not be well served by overwrought guidance that extends absolute protections at the expense of their peers’ legitimate rights or limits a school’s flexibility to make reasonable accommodations. The Trump administration’s action rightfully allows for states and districts to work out reasonable protections that can be refereed by courts of law, not by an agency in Washington.
Nat Malkus is a research fellow in education policy studies at the American Enterprise Institute.