On February 22, 2017 the U.S. Department of Education and Department of Justice jointly issued a letter to withdraw previous guidance issued by the Obama Administration requiring schools to treat transgender students in accordance with their gender identity. The guidance issued in May 2016 by the Obama Administration came in response to a growing number of states across the country proposing and passing anti-transgender legislation, much of which specifically targeted transgender youth by prohibiting them from using school restrooms and locker rooms in accordance with their gender identity. Under President Obama, the Department of Justice and the Department of Education issued guidance to schools explicitly stating that both agencies consider discrimination on the basis of gender identity in schools to constitute a form of sex discrimination prohibited under Title IX of the Education Amendments of 1972. A federal court in August 2016 enjoined the administration from enforcing the new guidance.
The May 2016 guidance was necessary to ensure the health and well-being of transgender youth. Studies have shown that discrimination in public accommodations can contribute to a wide array of negative physical and mental health outcomes for transgender people. Transgender residents of Washington, DC reported that stress related to bathroom access negatively affected their education, in some cases causing excessive absence and even their dropping out of school. [1] A 2013 survey of 452 transgender Massachusetts residents found that anti-transgender discrimination in public accommodations was widespread and correlated with a number of adverse health outcomes, including headache, pounding heart, gastrointestinal symptoms, anxiety, and depression. [2]
“Transgender youth are vulnerable to harassment and stigma in school,” said Sean Cahill, PhD, Director of Health Policy Research at The Fenway Institute. “A growing body of jurisprudence has interpreted sex discrimination to include anti-transgender discrimination. The Trump Pence Administration’s action last night will make schools less safe and affirming for transgender youth, and make it harder for them to access an education. We should treat transgender youth with compassion and ensure a safe learning environment that promotes their health and well-being.”
It’s important to note that the guidance letter from DOE and DOJ had the following language that states that all students have a right to access an education free of discrimination, bullying, or harassment:
“Please note that this withdrawal of these guidance documents does not leave students without protections from discrimination, bullying, or harassment. All schools must ensure that all students, including LGBT students, are able to learn and thrive in a safe environment. The Department of Education Office for Civil Rights will continue its duty under law to hear all claims of discrimination and will explore every appropriate opportunity to protect all students and to encourage civility in our classrooms. The Department of Education and the Department of Justice are committed to the application of Title IX and other federal laws to ensure such protection.”
Also, last night Secretary of Education Betsy DeVos issued a statement in which she said:
“We have a responsibility to protect every student in America and ensure that they have the freedom to learn and thrive in a safe and trusted environment. This is not merely a federal mandate, but a moral obligation no individual, school, district or state can abdicate. At my direction, the Department’s Office for Civil Rights remains committed to investigating all claims of discrimination, bullying and harassment against those who are most vulnerable in our schools.
The guidance issued by the previous administration has given rise to several legal questions. As a result, a federal court in August 2016 issued a nationwide injunction barring the Department from enforcing a portion of its application. Since that time, the Department has not enforced that part of the guidance, thus there is no immediate impact to students by rescinding this guidance.
This is an issue best solved at the state and local level. Schools, communities, and families can find – and in many cases have found – solutions that protect all students.
I have dedicated my career to advocating for and fighting on behalf of students, and as Secretary of Education, I consider protecting all students, including LGBTQ students, not only a key priority for the Department, but for every school in America.
We owe all students a commitment to ensure they have access to a learning environment that is free of discrimination, bullying and harassment.”
The action taken by DOE and DOJ last night has the potential to increase transgender youth’s vulnerability to discrimination and harassment. Many transgender students already feel unsafe or experience harassment in schools. The GLSEN 2015 National School Climate Survey, a survey of 10,528 LGBTQ students across the country, found that 43% of LGBTQ students felt unsafe at school because of their gender expression. Over half of the respondents (55%) reported experiencing verbal harassment and 20% reported experiencing physical harassment at school because of their gender expression. As a result, 32% of respondents reported missing at least 1 day of school in the past month because they felt unsafe and 72% of respondents reported avoiding school functions because they felt unsafe. [3] By requiring schools to treat transgender youth in accordance with their gender identity and providing options for recourse for transgender students who experience discrimination, the Obama Administration guidance took a critical step forward in ensuring safe school environments for transgender youth. Rolling back those protections may help reverse that progress.
Finally, it’s important to note that the Trump Pence Administration’s action will not affect the ability of state and local education departments to treat transgender youth with compassion and allow them to use facilities in accord with their gender identity. In Massachusetts, the Department of Elementary and Secondary Education’s guidance for public schools regarding gender identity nondiscrimination remains in effect.
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[1] Herman, Jody L. Spring 2013. “Gendered Restrooms and Minority Stress: The Public Regulation of Gender and its Impact on Transgender People’s Lives.” Journal of Public Management and Social Policy.
[2] Reisner SL, White Hughto JM, Dunham E, Heflin K, Begenyi JB, Coffey-Esquivel J, Cahill S. July 2015. “Legal protections in public accommodations settings: A critical public health issue for transgender and gender nonconforming people.” Milbank Quarterly. 1-32.
[3] GLSEN. 2015. The 2015 National School Climate Survey: Executive Summary.