Kaplan: Title IX and Trans Students in the Trump Era

POST BY Jay Kaplan LGBT Legal Project Staff Attorney

Shameful. Political pandering. Heartless. Cowardly. A terrible message to send to some of our most vulnerable youth.

All of these are appropriate responses to the Trump Administration’s recent decision to rescind guidance to public schools regarding the fair and equal treatment of transgender students. 

The guidance, promulgated by the Departments of Justice and Education last year during the Obama Administration, makes clear that transgender students are to be afforded the same dignity as cisgender students and are permitted to participated in school activities in accordance with their gender identity, including using restroom facilities. In explaining its decision to revoke these protections, the Trump Administration claimed that Obama Administration guidance created confusion in public school districts and that this was a matter best left to the States.  

So now, I would now like to add the word “disingenuous” to the list of characterizations of Trump’s decision.

Far from providing confusion, the Obama Administration provided clarity to public school districts that transgender students are protected under Title IX, which prohibits discrimination on the basis of sex, including gender stereotyping.  This conclusion is consistent with numerous federal court and agency decisions that when a transgender person is discriminated against due to his or her failure to conform to gender stereotyping, that this constitutes sex discrimination. 

In other words, transgender people are targeted for discrimination in employment, housing, education, and public accommodations because they are considered to be gender non-conforming.  

Federal courts throughout the country have interpreted our civil rights laws this way, and courts in Colorado, Wisconsin, Ohio, Virginia, Illinois and Minnesota have held that transgender students have the right to use facilities in accordance with their gender identity. Along with sending a message that it’s OK to discriminate against and diminish our transgender youth, the Trump Administration has created confusion by offering a position that is inconsistent with federal legal precedent.

But make no mistake: The meaning of Title IX cannot be changed by the Trump Administration and its revocation of the guidance, nor by the current position of the Secretary of Education Betsy DeVos (who capitulated to the Trump Administration’s insistence on rescission). 

School districts can and must protect all students from discrimination, including transgender students.  Barring transgender students from single-sex spaces, consistent with the gender the student lives every day is not consistent with a district’s obligations under Title IX and the Constitution. 

If the Department of Education will no longer act, the ACLU will.

 Yes, the Trump Administration has indeed sent a terrible message to vulnerable transgender students- that they are not welcome in their schools as they are.  But the law and the Constitution has not changed—which means we will continue to fight any efforts to undermine transgender students’ rights to a fair, safe and supportive learning environment.

Far from providing confusion, the Obama Administration provided clarity to public school districts that transgender students are protected under Title IX, which prohibits discrimination on the basis of sex, including gender stereotyping.

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