On Wednesday, the Trump administration lifted federal guidelines requiring schools to allow transgender students to use the bathrooms and locker rooms that match their gender identity, among other recommendations. The move leaves it up to states and school districts to interpret anti-discrimination laws and act accordingly when it comes to transgender rights in schools.
“This is an issue best solved at the state and local level,” Education Secretary Betsy DeVos said in a statement. “Schools, communities, and families can find—and in many cases have found—solutions that protect all students.”
Attorney General Jeff Sessions said in a statement that the previous guidelines, which were instituted last May during Barack Obama’s presidency, “did not contain sufficient legal analysis or explain how the interpretation was consistent with the language of Title IX.”
Title IX is a landmark federal law stating that “no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.”
Trump’s policy reverses the previous administration’s position on how nondiscrimination laws apply to transgender students.
The Obama administration’s policy was merely guidance to educational institutions on transgender inclusion and was not a law or legally binding order. After the Obama administration’s original directive was issued last May, 13 states sued, so a federal judge in Texas put a temporary hold on the guidance.
Transgender rights activists say the Obama administration’s ruling was important for reminding schools how they should treat transgender students. Per the U.S. Department of Education, the guidance explained that when students or their parents notify a school that the student is transgender, the school must treat the student consistently with their gender identity.
“A school may not require transgender students to have a medical diagnosis, undergo any medical treatment, or produce a birth certificate or other identification document before treating them [consistently] with their gender identity,” a press release on the guidance says. It also states that schools have an obligation to allow students to participate in sex-segregated activities (such as sports) and access sex-segregated facilities, like bathrooms, consistent with their gender identity.
Refusing to allow transgender people to use the bathroom that fits their gender identity can have troubling and even dangerous consequences.
Not allowing people to use the bathroom designated for the gender with which they identify opens those in the transgender community up to discrimination and bullying and challenges their sense of self, experts say.
This is key because the transgender community is a particularly vulnerable one. Survey results released in December by the National Center for Transgender Equality found that 40 percent of the 27,715 transgender people polled had attempted suicide at some point.
Those numbers aren’t much better for transgender teens: According to the Youth Suicide Prevention Program, almost 50 percent of transgender youth have thought seriously about suicide, and 25 percent have actually made a suicide attempt. By comparison, cisgender teens and young adults between the ages of 15 and 24 have a suicide rate of 12.5 per 100,000 people, the American Foundation for Suicide Prevention reports.
Suicide is one of many serious potential threats to trans people’s wellbeing. Transgender people are consistently at more risk of violence than cisgender people. The National Center for Transgender Equality’s survey found that 46 percent of survey respondents had been verbally harassed in the past year due to being transgender, and 9 percent had actually been physically attacked because of their gender identity. Even more tragically, 67 percent of hate violence homicide victims in 2015 were transgender or gender non-conforming people, according to data from the National Coalition of Anti-Violence Programs (NCAVP).
The hazards extend to sexual assault as well, with 47 percent of The National Center for Transgender Equality survey respondents reporting having been sexually assaulted at some point, and one in 10 reporting having been sexually assaulted in the past year. On the whole, transgender women are 1.8 times more likely to experience sexual violence than cisgender people, per NCAVP.
While there are no reports of a trans person attacking someone in a public restroom, bathrooms represent a very real danger for trans people themselves. Fifty-nine percent of survey respondents reported sometimes (48 percent) or always (11 percent) avoiding using a public restroom due to fear of harassment or violence.
Anti-discrimination laws can help provide transgender students with safety, security, and support.
“If a transgender student can’t use the restroom consistent with their gender identity, it becomes much more difficult to go to school,” Sarah McBride, national press secretary for the Human Rights Campaign, tells SELF. Forcing transgender children and teens to use a bathroom affiliated with the sex they were assigned at birth undermines their gender identity and sends a signal that transgender students should be treated differently. “They just want to be treated like their peers,” McBride says.
Jay Wu, media relations manager for the National Center for Transgender Equality, tells SELF that the Obama administration’s policy was about much more than bathrooms. “It was a broad piece of guidance addressing better practices for how schools can accommodate transgender students in all areas of school life,” they say.
McBride agrees. “The guidance that was issued last May really provided transgender young people and their families with a layer of safety, security, and support,” she says. “The guidance sent a clear signal about how to treat transgender students with dignity and fairness.”
This latest policy change jeopardizes the progress that has been made in the fight for transgender students’ rights.
The message the Trump administration’s move sends to transgender students is that they’re not as equal as other students, Katherine Greenberg, M.D., part of the Physicians for Reproductive Health’s Adolescent Reproductive and Sexual Health Education Program and director of gender health services at the University of Rochester, tells SELF.
“By extending Title IX explicitly to transgender students, we were sending a very concrete message that you are protected and safe, and we are going to make sure that your mental health and emotional needs are being met,” she says. “By leaving it up to individual states and school districts, we no longer say to trans students that [their] rights are primary and we want to protect them.”
Demoya Gordon, transgender rights project attorney at Lambda Legal, tells SELF that rescinding the guidance still doesn’t change the fact that transgender students are protected under Title IX, meaning they should not face sex-based discrimination at school. “That is the law and continues to be the law regardless of what the Trump administration is trying to do with this action,” she says. “This is a very mean-spirited attempt to confuse that.”
The change in policy has transgender rights experts concerned.
McBride says there often is an increase in harassment of transgender students after major developments like this. “There is no question in my mind that the rescinding of this guidance really has the potential to embolden bullies in the classroom and state legislature,” she says.
Gordon says that transgender students should know there are several organizations, like Lambda Legal, they can reach out to if they experience discrimination in school. “We see them and we respect them,” she says. “We’re here to help.”
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