Protecting Transgender Students, and All Students, in School
Only a month into his presidency, Donald Trump’s Administration has announced it is rescinding the guidance put in place by President Obama to protect transgender students from discrimination in our nation’s schools. Transgender students continue to be among the most vulnerable young people, with 77% experiencing mistreatment between kindergarten and twelfth grade. According to the 2015 National Transgender Discrimination Survey—the largest-ever survey of the transgender community—more than half of transgender students face verbal harassment, a quarter are physically attacked, and 13% are sexually assaulted while attending school because they are transgender. In fact, two in ten (17%) transgender students feel forced to leave their own schools because of harassment.1 The Obama Administration guidance began to address this stark reality facing America’s transgender students and helped schools understand the best ways to keep all of their students safe.
What did the Title IX Guidance Do?
In May 2016, the Obama Administration issued guidance on the responsibilities schools have under Title IX of the Education Amendments of 1972 when it comes to their transgender students. Since its passage, Title IX has stated that schools receiving federal funding—including both K-12 schools and higher education institutions—cannot discriminate against their students based on sex. This includes making sure that boys and girls have equal access to extracurricular activities and sports teams and ensuring that pregnant students are able to continue attending classes. Title IX’s protections also give schools a responsibility to protect their students from bullying and harassment, including sexual harassment.
The Obama Administration guidance, which was issued in response to inquiries by schools across the nation, clarified that Title IX’s prohibition on sex-based discrimination protected transgender students in schools. That means, for example, this existing law safeguards their ability to 1) use the restroom that matches their gender identity, 2) be referred to by the correct pronouns, and 3) participate in school programs in accordance with their gender identity. In short, it allowed them to attend school in a way that is true to themselves and focus on getting an education. The guidance was supported by a wide array of organizations tasked with caring for all students in our nation’s schools, including the American Association of Secondary School Principals, National Association of Elementary School Principals, the American Academy of Pediatrics, the National Association of School Psychologists, the American School Counselors Association, the National Parent-Teacher Association, the National Education Association, and the American Federation of Teachers.2
What does Rescinding the Title IX Guidance Mean?
President Trump has decided to roll back this Title IX guidance. In practical terms, this means that his Administration is informing schools that it is no longer Administration policy to interpret Title IX to protect transgender students in schools. This will put a stop to any agency efforts to enforce Title IX’s non-discrimination protections in this context. But despite his best efforts, President Trump can’t wave a magic wand and eliminate all protections for transgender students.
Federal law still protects transgender students.
While it was not difficult for President Trump to revoke the Obama Administration Title IX guidance, he cannot unilaterally change the law. Title IX remains the law of the land, and over 15 years of case law affirm that its non-discrimination rules already protect transgender students. Five federal courts of appeals and multiple district courts have ruled that Title IX as written prohibits discrimination against transgender students—even without the Obama Administration guidance.3 That protection cannot be revoked by presidential or administrative action.
State and local school district polices will also continue to protect transgender students——as they long have, without incident.
Rescinding the federal guidance does not revoke the policies that 14 states, the District of Columbia, and hundreds of other local school districts have already implemented to protect their transgender students from discrimination.4 Enacting these non-discrimination policies hasn’t disrupted the classroom—it has made it easier for all students to learn. More than 40% of American public school students already attend a school that protects transgender students from discrimination (including in places like Albuquerque, Fort Worth, and Topeka), and those existing policies have not in any way undermined the protection or safety of students who are not transgender.5 The data show that when transgender students are protected and able to focus on learning, they do—thriving and succeeding at the same rates as other students.6 Even in the wake of President Trump’s action, these states and school districts will continue to protect all of their students, regardless of their gender identity.
This action does send a dangerous message to some of our most vulnerable students.
Schools should be a safe place where every student can focus on learning. By rescinding this guidance, President Trump is sending a public message that some students are not entitled to equal protection and shelter by the federal government. In the 36 states that don’t have clear policies protecting transgender students, these actions by the Trump Administration may force some of our country’s most vulnerable kids and their families to personally shoulder the burden of addressing discrimination in our schools. Legal challenges are not only long and costly, but they distract from the students’ education and can lead to increased ostracizing and harassment. Being a child is already hard enough. The only thing transgender students should have to fear is forgetting their homework, but this action makes it more likely they will have to face being singled out for their gender identity and treated differently because of who they are.
There are estimated to be hundreds of thousands of transgender students currently attending American schools.7 They deserve the same opportunities and education as their peers. President Trump’s revocation of the Title IX guidance will encourage just the opposite and only serve to harm American students. Rescinding the Title IX guidance targets an already marginalized group of Americans who deserve better from their President.