Transgender Rights and Trump

Yesterday the Trump Administration announced that it was withdrawing a “Dear Colleague” letter, prepared by the Department of Justice’s Civil Rights Division and the Department of Education’s Office of Civil Rights (“OCR”) on May 13, 2016.  That letter informed educators that Title IX of the Education Amendments of 1972 requires schools receiving federal funds to provide transgender students access to restrooms that match their gender identity, not their gender at birth.

At least that is what I think the Trump Administration did.  For some reason, information about that decision does not appear on the White House Web site.

It does not appear that the Trump Administration has changed any of the Department of Education’s previous pronouncements about the application of Title IX to transgender students.  That includes the OCR’s 2014 Questions and Answers on Title IX and Sexual Violence, which specifically covers transgender students; or its opinion letter of January 7, 2015, which states that when a “school elects to separate or treat students differently on the basis of sex” with respect to sex-segregated restrooms, locker rooms, shower facilities, housing, athletic teams or single-sex classes, “a school generally must treat transgender students consistent with their gender identity.”

The news reports about yesterday’s announcement states that the Administration wants these issues to be handled by the states.  That statement is bizarre.  We are talking about the interpretation of a federal statute.  Any lawyer knows that only the federal courts can authoritatively interpret federal statutes.  Not state governments or state courts.

The federal courts have long held that discrimination against transgender people can constitute sex discrimination.  Those cases are based on the Supreme Court’s decision in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), which holds that an employer commits sex discrimination by taking an adverse action against an employee based on a sexual stereotype.  In that case, the stereotype concerned how aggressively women could, or should, behave in the workplace.  But stereotypes can also include the way that an employee who was assigned a particular gender at birth looks or acts.

Gender stereotyping of transgender persons can violate the Gender Motivated Violence Act, Schwenk v. Hartford, 204 F.3d 1187 (9th Cir. 2000); the Equal Credit Opportunity Act, Rosa v. Park West Bank & Trust Co., 214 F.3d 213 (1st Cir. 2000); Title VII of the Civil Rights Act of 1964, Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004); and the Equal Protection Clause of the Fourteenth Amendment, Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011) (sex discrimination).

Two federal appellate courts have issued rulings on transgender rights under Title IX.  One case, G.G. v. Gloucester Cnty. Sch. Bd., 822 F.3d 709 (4th Cir. 2016), granted deference to the OCR’s opinion letter of Jan. 7, 2015, in deciding that the lower court had used the wrong evidentiary standard in assessing a transgender student’s motion for a preliminary injunction.  Another court, in Dodds v. United States Dept. of Educ., 845 F.3d 217 (6th Cir. 2016), affirmed a lower court’s denial of a stay of a preliminary injunction, in which that court ordered a school district to treat an 11-year-old transgender girl as a girl and to use the girls’ bathroom.

The G.G. case will be heard by the Supreme Court.  Oral arguments are scheduled for March 28.  If the court doesn’t deadlock on a 4-4 vote, that case could provide definitive guidance as to how Title IX should be interpreted.

The Trump Administration’s announcement yesterday appears to be a gift to the religious right, which helped get Mr. Trump elected.  To the extent that it was based on the view that Title IX does not protect transgender students, the Administration has failed to explain whether it also feels that violence against such students violates Title IX, or why the legal principles adopted for other statutes do not apply to Title IX.  Nor did the Administration explain why it believes that forcing children to use a bathroom that does not match their gender identity in any way advances any legitimate educational purpose, or explain how it plans to address the staggeringly high suicide rates among transgender teenagers.

Perhaps the Administration has a good reason for this action.  If so, it should explain it.  And it should explain what it will do to protect the safety and well-being of students, not the prejudices of non-students.

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