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“Not Today, Satan” & Other Thoughts on the Rescission of the Transgender Guidance

By: Adaku Onyeka-Crawford, Senior CounselPosted on February 24, 2017 Issues: Education & Title IX

According to the 2015 US Transgender Survey, more than half (54 percent) of transgender students in K–12 schools have been verbally harassed and almost a quarter (24 percent) have been physically attacked. Nearly one in six (17 percent) of students who were out or perceived as transgender left school because the mistreatment was so bad. It’s against this backdrop that Education Secretary Betsy DeVos and Attorney General Jeff Sessions decided to rescind guidance that clarified how schools can ensure transgender students have access to equal educational opportunities under Title IX.

The rescission of the guidance is especially cruel since it has almost no legal effect, but does sends a shameful message that the Trump Administration will not enforce Title IX and that it’s fine putting  transgender students’ well-being and safety at risk.

Title IX Still Protects Transgender Students

Rescinding the guidance does not change the law—Title IX still protects transgender students from sex discrimination in school. That is not something that the Obama administration came up with. It’s what a number of courts have said based on decades of interpreting federal sex discrimination law.

In fact, the reason the Department of Education released guidance last May was because educators were asking for recommendations to accommodate the growing number of students who are transitioning earlier in life. In response to these requests, the Department released a Dear Colleague Letter along with a compendium of model policies that other school districts created to accommodate their transgender students. This is not a story of the feds telling schools what to do. It’s the feds pointing to best practices created by local schools to help comply with law. Thankfully, the compendium of model policies and other resources for transgender students are still live on the Department’s website (for now).

And because we know that Title IX protects trans students, we are going to keep fighting for their rights in court. Last month, we filed a friend-of-court brief in the Seventh Circuit to support Ash Whitaker’s fight to use the boy’s facilities at his school in Wisconsin. And we’ll also #StandWithGavin by filing another friend-of-court brief when his case goes to the Supreme Court next month.

 “Because States’ Rights” is an Argument Historically Used by Bigots to Push Back against Civil Rights

The company line from the Trump Administration is that allowing students to access facilities that correspond with their gender identity is a “states’ rights issue.” Sigh. Say it with me:

State law can’t take away federal civil rights. Again, that’s not something I made up. It’s the U.S. Constitution. Check the Fourteenth Amendment.

Not only that, but this whole “states’ rights” argument has become a dog whistle to fight against movements to give historically disadvantaged Americans the same rights that historically advantaged Americans (i.e., white, hetero, landowning men) have enjoyed forever in this country. Don’t believe me? Check out the history for marriage equality for same-sex couples. Marriage equality for interracial couples. “Separate but equal” public accommodations. Voting rights.  SLAVERY!

States’ rights loses to civil rights because it’s inherently un-American to allow states to take away rights and freedom that are guaranteed to all citizens, like the right to vote without intimidation, the freedom to marry whoever you love, and the basic human dignity of being able to use the bathroom without  inconvenience or increased scrutiny . A person does not have a meaningful right if a state can pass a law to take it away. And the way to guarantee that people have equal protection of the law no matter where they live is if the federal government uses its power to step in when states and localities trample on those rights. As Justice Clark said in the landmark case Mapp v. Ohio, “To hold otherwise is to grant the right but in reality to withhold its privilege and enjoyment.”

You know what else has been the argument used by bigots to fight against civil rights? Raising the specter of the bathroom boogeyman. For example, even after Brown v. Board of Education ruled school segregation unconstitutional, states continued to fight for segregation of school bathrooms based on the lie that desegregating bathrooms would make white girls “ill and sexually corrupt” from venereal diseases Black girls would leave behind. This was clearly a lie based on racist and sexist stereotypes. And the fear that trans students will go around attacking and exposing themselves to cis students is also based on a transphobic lie. Seriously, we’re all just trying to pee.

Betsy Gets No Brownie Points

Reportedly, Secretary DeVos was initially uncomfortable with rescinding the guidance, but signed off on it anyway. Afterwards, she put out a vague statement saying she’ll continue to “investigate all claims of discrimination,” but nothing on whether those investigations would lead to enforcement. Look, it makes no difference if you plant stories to show you have friends who are LGBTQ, if you do nothing when folks from that community are being singled out for discrimination. And it’s especially egregious if you are in an actual position of power to stop the oppression and do nothing but roll over.

Betsy basically said, “My heart goes out to trans kids but I’m totally fine with schools singling them out for discrimination.” But that’s not surprising given that she repeatedly refused to say that she’d preserve the transgender guidance or enforce protections for LGBTQ students. Just last week, she said she couldn’t “think of any” civil rights issue in which her Department of Education would intervene. She had the opportunity to prove her critics wrong, and instead she proved she was exactly who we knew she was.

But then again, Press Secretary Sean Spicer said that Sessions and DeVos were 100% in agreement on the need to rescind the guidance and she seemed to double down on that notion in a speech on Thursday. It wouldn’t be the first time she said one thing to one group and then the opposite to another.

Regardless, students who need special educational services, survivors of sexual assault and everyone “her heart bleeds for” should take note.

Jeff Sessions Can Catch These Hands, Too

My colleagues here at the Law Center have already pointed out all the ways that Jeff Sessions has been aggressively hostile towards civil rights. His attack on transgender kids just adds to his shameful legacy of bigotry.

Let Jeff & Betsy Know You Stand with Transgender Kids

While we’re taking this issue directly to the courts, we’re also calling on parents, students and community members to stand with transgender kids. Push your school to reaffirm its commitment to ensuring that transgender students can attend school free from discrimination. You can also send a message to Secretary DeVos and Attorney General Sessions to demand that they continue to enforce Title IX.

Transgender students are not going away, and our schools need to support them, even if this administration will not. Now more than ever we need to make our voices heard and #ProtectTransKids.

It's time for change, and we must act now. Time's up.