The Law Still Protects Trans Kids – Schools Must Recognize This

Trump administration has clearly signaled it doesn't care about trans students' safety – but it can't rescind a federal statute

Transgender students are disproportionately at risk of being bullied and ostracized, and of depression and suicide. Credit: Andrew Harnik/AP

In July, Donald Trump told the Republican National Convention that, in light of the Orlando shootings, he would "do everything in my power to protect our LGBTQ citizens from the violence and oppression of a hateful foreign ideology." ("Believe me," he added.) But on Wednesday, Trump made it crystal clear that he couldn't care less about protecting LGBTQ citizens from oppression from domestic hate.

Over the reported objections of his secretary of education, Betsy DeVos, Trump and Attorney General Jeff Sessions rescinded last year's letter from the Obama administration protecting transgender students in school. Specifically, that 2016 guidance explained to schools that Title IX – the 1972 federal law prohibiting sex discrimination in schools – bars discrimination "based on a student's transgender status." This meant that schools had to have a safe environment for trans students, use gender markers and pronouns consistent with the student's identity, protect trans students' privacy and allow trans students to participate in single-sex activities based on their gender identity. This last aspect of the letter received the most attention, as it meant trans students could use the bathroom they wanted to use, rather than being forced to use one based on the gender identity they were assigned at birth.

The Trump administration's actions Wednesday clearly signaled to trans students, the people who care about them and the schools that educate them that this new White House doesn't care about safety, privacy, identity or full participation in school for trans students. However – and this is incredibly important to understand – this week's rescission does not in any way change the fact that trans students are still protected under federal law from discrimination. The Trump administration can signal that it disagrees with how the Obama administration thought about these issues, but what Trump and Sessions cannot do is rescind a federal statute. And it is Title IX that gives trans students protection.

As heartless as the Trump administration is in announcing this week that it doesn't care about kids at school who are disproportionately at risk of being bullied and ostracized, and of depression and suicide, Title IX is still there for these kids, and their schools must understand that.

It is clear, as Press Secretary Sean Spicer said earlier in the week, that when Congress members passed Title IX, they were not thinking of protecting transgender students. However, just because Congress wasn't thinking of a particular population doesn't mean that the law doesn't cover them. As our understanding of sex and gender has evolved, and the visibility of trans students and adults increased, courts have recognized that a prohibition on sex discrimination also includes a prohibition on discrimination based on being trans. Courts have said that this is so because a person discriminated against for being trans is being treated differently based on sex stereotypes (that someone assigned a certain sex at birth should present a certain way) and because the basis for the discrimination is related to sex.

One court used a comparison to religion to drive home the point:

"Imagine that an employee is fired because she converts from Christianity to Judaism. Imagine too that her employer testifies that he harbors no bias toward either Christians or Jews but only 'converts.' That would be a clear case of discrimination 'because of religion.' No court would take seriously the notion that 'converts' are not covered by the statute. Discrimination 'because of religion' easily encompasses discrimination because of a change of religion."

The court reasoned that the same is true with discrimination against trans individuals: Even though the language of the law says that it covers discrimination based on sex, discrimination against trans individuals is included.

Most of these cases have been in the context of employment discrimination, but the same language is used in the employment discrimination context as in education – no discrimination "because of sex." That means that Title IX prevents discrimination against transgender students, and that, regardless of what the Trump administration thinks about the law, transgender students continue to have the right to go to school free of mistreatment.

The Supreme Court is currently considering a case that may test this now-well-established principle. Next month, the Court is scheduled to hear the case of Gavin Grimm, a transgender student who was denied access to the boys' bathroom in his high school. He won in the appeals court, but part of that decision was based on the Obama administration guidance. On Wednesday, the Trump administration asked the Supreme Court to put the case on hold while it considers the impact of this new guidance, and late Thursday, the Court asked the parties in the case for new briefing on the effect of the administration's actions. Once the Court gets that briefing next week, it will have two options: send the case back to the lower court to consider the new development, or hear the case based solely on the Title IX claim. We don't yet know what the Court will do.

What we do know is that, despite the Trump administration signaling that it doesn't care about kids wanting the basic right to go to school without fear of harassment and discrimination, trans kids are still protected under federal law. Schools around the country must continue to recognize that law, and not let the Trump administration's bigotry determine how their trans students are treated.