Monday, February 13, 2017

Trans Students' Bathroom Rights: Will DeVos & Sessions Follow Candidate Trump's Common Sense? Not Likely.

By Diane Klein

The most challenging part of the school day shouldn't be figuring out where to go to the bathroom - or whether one can safely do so anywhere at all.  But thanks to the first act of our new Attorney General, those states that would deprive trans students of safe access to appropriate bathroom facilities will face no objection from a Trump DOE or DOJ.

On Tuesday, February 7, 2017, the Senate confirmed Betsy "But What About The Grizzlies?" DeVos as Secretary of Education; Jeff "Elizabeth Warren and The Ghost of Coretta Scott King Are Bullying Me" Sessions was confirmed and sworn in the next day; and by week's end, the Sessions-led DOJ had reversed course on an important Title IX case relating to the rights of transgender students.

This may be the first (and only!) time I wish Trump's Cabinet would take their lead from candidate Trump's public statements on an issue.  Unfortunately, recent events suggest the opposite: that DeVos and Sessions will be targeting one of our nation's most vulnerable groups, in a needless and cruel policy offered as a sop to the most deplorable, ignorant part of the electorate.

Nearly a year ago, on February 22, 2016, the Charlotte (NC) City Council voted 7-4 to expand an existing nondiscrimination ordinance to cover LGBT people.  The ordinance, which would have gone into effect April 1, 2016, included a provision permitting people to use the bathroom of the gender with which they identify.

On March 23, 2016, North Carolina, in a response that makes the Pearsall Plan look progressive and open-minded, enacted HB2, undoing Charlotte's ordinance, and requiring use of bathrooms corresponding to a person's "biological sex," defined in the bill as "The physical conditions [sic] of being male or female, which is stated on a person's birth certificate."  Under HB2, schools were specifically prohibited from allowing students to use any other bathroom than the one matching birth-certificate sex.  It stated, "Local boards of education shall require every multiple occupancy bathroom or changing facility...designated for student use to be designated for and used only by students based on their biological sex."

HB2 became hugely controversial, and prompted boycotts of North Carolina by various businesses (like PayPal) and organizations.  (For example, the NCAA has pulled its championship games out of the state.)  It was in the context of that business impact that candidate Trump responded to queries about the bill. When, on April 20, 2016, Matt Lauer of the "Today" show asked Trump about the issue, Trump pointed to "the strife and the economic punishment" suffered by North Carolina because of HB2.  He suggested, admittedly vaguely, that the state simply "Leave it the way it is," meaning, presumably, continue to allow transgender Americans to use the bathroom associated with the gender with which they identify.  Should Caitlyn Jenner, one of the best-known trans women in America, visit Trump Tower, he intimated, she could use the restroom of her choice.

While Trump's response was hardly a resounding affirmation of trans rights, he responded as many fair-minded Americans do to this entirely manufactured issue: in essence, who cares what bathroom someone uses?  And what sort of people do care?

A closer look makes clear that the real intent of these "bathroom bills" is not to protect anyone.   Opponents of transgender bathroom access have a long and sordid history of casting trans people as sexual predators instead of what they actually are: the frequent victims of hate crimes, including sexual crimes.  A person who intends to carry out an assault in a restroom will hardly be deterred by the gender marker on the door.  There is obviously something else going on.

That something else is a frontal assault on transgender identity and existence.  While the benefits of such bills are non-existent, the harmful effects on trans kids in school are staggering.  Requiring trans kids in schools to use the bathroom associated with the sex on the student's birth certificate (which generally cannot be changed until adulthood) may not seem like a big deal.  But stigmatizing a child who wishes to present in a gender different from their assigned gender is a way to deter that child from outwardly transitioning at all (in other words, a trans girl identified at birth as a boy will be forced to continue to present as a boy, and use the boys' restroom), on pain of being set up for abuse, or even driven out of school.  A law requiring that bathroom use be dictated by the sex assigned at birth will increase the trans student's discomfort (including physical discomfort) and marginalization at school, inviting state-sanctioned bullying, and even violence - without making anyone safer.

Under a bill like HB2, a trans student presenting in their self-defined gender faces an impossible dilemma in using any school restroom.  Entering the boys' restroom while presenting as a girl, as the law would require of a trans girl, would invite abuse, while using the girls' restroom despite possessing male external genitalia would create a paralyzing fear of discovery.  A trans student who was not "out" to their school and classmates would in fact be required to out him- or herself, in order to avoid breaking the law by using the prohibited bathroom.  It is degrading, humiliating and cruel to draw attention to a student in this way, and force them to choose between outing themselves and breaking the law, and it is hardly better to put teachers or school personnel in a position to police student restroom use.  It is indecent to require teachers to think like child molesters or peeping Toms, more concerned about what is in a student's pants than what's in their head.

A day or so after Trump's reasonable, if uninspiring, remarks, Fox News' Sean Hannity attempted to corral Trump back into the right-wing "state's rights" fold, by re-interpreting Trump's ambiguous comment that "I think that local communities and states should make the decision."  Trump, it's safe to say, was probably unaware that HB2 emerged precisely from a conflict between a community (Charlotte) determined to practice nondiscrimination, and a state legislature that felt otherwise.  Because, again, I just don't think he cares that much.  "If it's bad for business, why do it?," seems to pretty much sum up his view.

With controversy roiling over HB2, the Obama Administration sent out the "Dear Colleague Letter on Transgender Students"  on May 13, 2016.  This guidance document, which went out over the signatures of Catherine Lhamon, Assistant Secretary for Civil Rights (DOE) and Vanita Gupta, Principal Assistant Attorney General for Civil Rights (DOJ), required schools, upon notice from a student, parent, or guardian, to treat students in a way "consistent with the student's gender identity," regardless of the student's sex or gender in previous records.  The letter further stated, "A school’s Title IX obligation to ensure nondiscrimination on the basis of sex requires schools to provide transgender students equal access to educational programs and activities even in circumstances in which other students, parents, or community members raise objections or concerns." Crucially, the letter states, "When a school provides sex-segregated activities and facilities, transgender students must be allowed to participate in such activities and access such facilities consistent with their gender identity."

These new guidelines were promulgated under Title IX, a 1972 civil rights law that provides, "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."  It is sweeping in scope, covering 16,500 local school districts in all 50 states, as well as 7,000 postsecondary institutions. 

Although the "Dear Colleague" letter set new nationwide standards, the substantive policy it imposed was hardly novel.  The Los Angeles Unified School District (LAUSD), the second-largest district in the nation with 640,000 students (more populous than Vermont though only 1/10 the size), implemented a policy protecting the rights of transgender and gender non-conforming students in 2005 (updated in 2011).  This policy, copied by other districts, has operated entirely without incident.

Maybe that's why, when candidate Trump addressed it, he rightly saw it as a non-issue.

But wasting no time, the State of Texas, joined by Arizona, Alabama, Georgia, Louisiana, Maine, Oklahoma, Tennessee, Utah, West Virginia, and Wisconsin, filed suit against the government on May 25, 2016, and on July 6, 2016, sought a preliminary injunction against the enforcement of the Dear Colleague letter, taking particular exception to the bathroom rule.  On August 21, 2016, the preliminary injunction was issued by Judge Reed O'Connor of the Northern District of Texas. (Just as in State of Washington v. Trump, the current immigration case arising from Trump's Executive Orders, a federal district court order can apply nationwide.)  Should there have been any doubt about its purpose and scope, the injunction was clarified by Judge O'Connor on October 18, 2016, to apply nationwide, but only to the bathroom and locker room rules: the DOE and DOJ "are simply prevented from using the Guidelines to argue that the definition of 'sex' as it relates to intimate facilities includes gender identity."

Two weeks after Trump's election, on November 23, 2016, the Obama Administration sought a partial stay of the injunction pending appeal, seeking to limit it to the states involved in the litigation. Oral arguments before the Fifth Circuit were scheduled for February 14, 2017.

But on Friday, February 10, 2017, the DOJ quietly withdrew from the case, using language suggesting they may drop the appeal entirely.  That leaves the nationwide injunction in place, even as another case involving the Title IX Dear Colleague letter is set to be heard by the Supreme Court March 28, 2017.  Despite hopeful language from some trans rights groups, without the threat of DOE enforcement, the Dear Colleague letter is more like a dead letter.

On October 28, 2016, just a few weeks after Judge O'Connor clarified his injunction, the U.S. Supreme Court granted cert. in G.G. (Gavin Grimm) v. Gloucester County School Board, another case involving transgender student access to bathrooms.  The Fourth Circuit found in favor of the student, employing Auer deference to the Title IX Dear Colleague letter in interpreting Title IX to cover gender identity, and 34 C.F.R. 106.33, the "comparable facilities" requirement for single-sex school facilities, to require giving trans students access to bathrooms consistent with their gender identity.

Regardless of the outcome of the litigation over the "Dear Colleague" letter, and the posture of the DOJ and DOE under Trump, California's statewide A.B. 1266, in effect since 2014, gives students the right to "use facilities consistent with his or her gender identity, irrespective of the gender listed on the pupil's records."  Students in many other states and the District of Columbia also enjoy the protection of general laws prohibiting discrimination against trans students.  Meanwhile, the Gloucester (Virginia) County School Board numbers Arizona, Maine, Mississippi, North Carolina, South Carolina, and West Virginia among its amici opposed to the "Dear Colleague" interpretation of Title IX.

Those of us who care about the civil and human rights of trans students everywhere will be watching both cases attentively, hoping for the best but prepared for the worst from the DeVos DOE and the Sessions DOJ.  The grizzly bears are the least of our worries.

3 comments:

Joe said...

The upcoming trans Supreme Court case involving a high school student is famous within the few who pay attention to such things as the one where Justice Breyer provided a "courtesy fifth" to stay the lower court opinion.

https://verdict.justia.com/2016/08/10/justice-breyer-uses-trans-restroom-case-revive-courtesy-fifth-vote

No follow-up from Breyer after the recess etc. The whole thing to me was a gratutious burden on the student who is 17, so wonder if he is graduating in June. As to predictions, this might be the sort of case where Gorsuch would be important in the future regarding executive discretion.

Diane Klein said...

I think it is quite likely that Gorsuch would find that Title IX does not cover gender identity, and that the "Dear Colleague" letter stating otherwise was an improper exercise of executive authority - unless Auer deference applies.

Joe said...

Net, as Michael Dorf suggested is possible, Gorsuch's overall approach sounds like something long term that liberals would find problematic. I hope a strong effort is made to debate such basic principles during the confirmation battle.