What the Trump Administration's Change to Transgender Bathroom Rights Really Means for Schools
States, not the federal government, will decide whether transgender students use school bathrooms matching their gender identity or their gender at birth.
By now, you probably know that President Trump has decided to allow states to determine whether transgender students in their public schools can use the restrooms and locker rooms matching their gender identity, as opposed to their gender at birth, marking a departure from how the Obama administration handled this highly-sensitive issue.
You will recall that in 2016, Obama issued an order mandating that under federal law, transgender students must be allowed to use the facilities of their gender identity, a decision that was met with mixed reactions. Now, Trump says this is a state issue, not a federal one, and says that his decision does not constitute a violation of federal anti-discrimination law.
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"Congress, state legislatures, and local governments are in a position to adopt appropriate policies or laws addressing this issue," Attorney General Jeff Sessions explained in a statement, adding, "The Department of Justice remains committed to the proper interpretation and enforcement of Title IX and to its protections for all students, including LGBTQ students, from discrimination, bullying, and harassment."
Title IX is a 1972 federal law that prevents discrimination in public schools based on gender, and while the Obama administration maintained that Title IX's protections include transgender students using bathrooms matching their gender identity, the Trump administration does not.
Jack Preis from the University of Richmond School of Law broke down the emotional and divisive issue for Parents.com, saying, "Whether you love it or hate it, Trump's executive order does not change the law—and that's because there never was any law to change. The Obama administration issued an order expressing its support for transgender students in May 2016, but his order was non-binding. By rescinding that order, Trump is doing nothing more than nullifying a non-binding order. This is hardly a cause for celebration or anguish."
He also explains how the change could affect transgender students and their families in the future, saying, "Even though orders like this are not law, they do convey the President's policy preferences—preferences that one day may shape an actual law."
Currently, 15 states have laws in effect to specifically protect transgender students, one state (North Carolina) has a law requiring people to use the bathroom matching the sex on their birth certificate in government-owned buildings (including public schools), and legislators in more than 10 other states are considering laws similar to North Carolina's.
"The Supreme Court is currently considering a case on transgender rights that may be impacted by President Trump's policy preferences, and Congress may take up the cause as well. Or Trump could begin the more formal process of making his opinions binding on local schools. But again, none of that has happened yet," Preis noted. "As a legal matter, [the] order is little more than a paragraph in a very short prologue of a very long book."
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Clearly there is much more to come on this very sensitive issue.
Melissa Willets is a writer/blogger and a mom. Find her on Facebook where she chronicles her life momming under the influence. Of coffee.