Yesterday, the Trump administration rescinded two federal guidance letters—issued in January 2015 and May 2016, respectively, under the Obama administration—on transgender students’ rights and public schools’ legal obligations under Title IX of the U.S. Education Amendments of 1972. This is a major step backward in the march toward equal rights and a troubling message to transgender students, but it does not change the law: Title IX prohibits discrimination based on sex, which means that transgender students cannot be excluded from restrooms or otherwise denied equal educational opportunities because of who they are. This was the case before the administration issued the guidance, and this remains the case after.
Yesterday’s decision centers mostly on the guidance issued in the May 2016 letter. This guidance—jointly issued by the U.S. Departments of Education and Justice in their “Dear Colleague Letter on Transgender Students”—informed public schools that they have a legal obligation to treat transgender students according to their gender identity. Schools were instructed, for example, to let transgender students use school facilities (such as bathrooms and locker rooms) that match their gender identity; to ensure that school staff and contractors use transgender students’ preferred pronouns and names; and to take prompt and effective steps to address school-based harassment and bullying against transgender students.
Looking back at the issuing of the guidance in light of yesterday’s news, it’s important to remember three key details.
First, in 2016, the Departments of Education and Justice determined that not treating transgender students according to their gender identity would constitute a violation of Title IX—a federal law that prohibits sex discrimination in schools receiving federal funding. The withdrawal of the 2016 guidance by the Trump administration does not change Title IX itself; transgender students still have the right to attend public schools that treat them consistent with their gender identity, as most lower courts have agreed.
Second, the guidance was well received by many education stakeholders. In fact, the National Association of Secondary School Principals—faced with concerns about the mental and physical health of transgender students—had requested comprehensive federal guidance on this student group. And other key stakeholders—the National Association of Elementary School Principals, the American Academy of Pediatrics, the National Association of School Psychologists, the American School Counselors Association, the National Parent-Teacher Association, the National Education Association and the American Federation of Teachers—gave the guidance their support.
However, the guidance did not go unchallenged: In May 2016, 11 states filed a lawsuit against the Obama administration, calling for rescindment; in August 2016, a federal judge in Texas issued a nationwide injunction, preventing the enforcement of the guidance. The debate and division over how Title IX applies to transgender students has continued into this year, as evidenced by yesterday’s decision. The U.S. Supreme Court is expected to rule on the issue in June of this year in a case involving a 17-year-old transgender student who sued his school board over its bathroom policy.
Third, the guidance reflected existing best practices in some states and school districts for supporting transgender students. In tandem with the issuing of the “Dear Colleague” letter, the Department of Education released “Examples of Policies and Emerging Practices for Supporting Transgender Students,” highlighting practices from across the country.
Considering the impact of this new decision, the National Center for Transgender Equality highlights some pressing concerns in its just-released FAQ resource:
[T]aking the guidance away will likely make school harder for many students. The guidance gave students and their parents a powerful tool to advocate [for] themselves, and it gave schools much-needed practical information about implementing good policies. Taking away the guidance could lead schools to be confused about what their responsibilities are under federal law, and it might make changing policies at unsupportive school districts an uphill battle for many students. And unfortunately, the harmful message sent by the Trump administration’s rollback of the guidance could encourage some students, staff, and administrators to bully and discriminate against transgender students.
We know that transgender students are already the targets of misinformed understandings about transgender identity, bullying and discrimination; any uptick would be worrisome. For example, the 2015 U.S. Transgender Survey shows that more than 77 percent of K–12 respondents who were out or perceived as transgender had one or more negative experiences at school, such as facing a discriminatory or non-inclusive dress-code policy, or being verbally, physically or sexually assaulted.
We also know, in an atmosphere of widespread intolerance for transgender individuals, many mental health experts, child health experts and education leaders have been working for years to build safe, inclusive schools that can adequately serve trans students.
The work to build welcoming and affirming schools for transgender students is not undone by the Trump administration’s rescindment of the 2016 federal guidance. But the work needs to continue; schools can and must continue to support transgender students with or without the explicit support to do so from the Trump administration. Transgender students need to know that their schools still intend to protect them.
There are ample how-to resources, rooted in research and best practices, available to school practitioners. A good starting point is to read the FAQs resource on the withdrawal from the National Center for Transgender Equality. Learn what the withdrawal does and what it doesn’t do, specifically as it pertains to transgender students’ rights under Title IX.
Next, consider consulting these resources:
Being There for
This Teaching Tolerance magazine story looks at how educators can help transgender students thrive and succeed at school.
Schools in Transition: A Guide to Supporting
Transgender Students in K-12 Schools
The National Center for Lesbian Rights and Gender Spectrum led the effort to produce this comprehensive guide, joined by Human Rights Campaign Foundation, the American Civil Liberties Union and the National Education Association.
Model District Policy on Transgender and
Gender Nonconforming Students
This resource from GLSEN and National Center for Transgender Equality puts forth best practices and recommended policy language.
and Caring for Our Gender-Expansive Youth
This report from the Human Rights Campaign and Gender Spectrum highlights how gender-expansive youth self-identify and offers suggestions for how adults, including educators, can best support them.
for Gender-Expansive and Transgender Students
Centered on creating inclusive environments for transgender and gender-expansive youth, this set of resources comes from Welcoming Schools, a project of the Human Rights Campaign Foundation.
As you work to support transgender students, keep in mind—and work to implement or uphold—the following “big-picture” best practices:
The experiences of LGBT youth vary greatly. Lumping LGBT experiences together is a mistake. For example, transgender and gender-nonconforming youth often face more hostility and bullying at school than their lesbian, gay and bisexual peers.
Supportive school staff can make all the difference. One educator can make a difference—but the goal is building an inclusive and welcoming school.
All students have the right to use the bathroom that corresponds to their gender identity. A transgender student should never be forced to use alternative facilities to make other students comfortable.
Respect the names and pronouns transgender youth have chosen for themselves. If you don’t know—ask. Model that respect in front of all students and colleagues.
Mentorship is instrumental for trans students’ success. When possible, seek out or establish a trans-to-trans mentorship program for students. Adult mentors can serve as a crucial support system for trans students and provide models for what it looks like to live life as a transgender person.
Curriculum and instruction play a big part in supporting trans youth. Including transgender figures and narratives in the curriculum helps ensure that trans students do not feel alone. Paying attention to and affirming non-gender-binary identities in student work is also very important.
Always trust and defer to transgender youth. If you are a non-trans-identified adult, don’t question what your trans student is going through. Follow their lead and provide your continued support along the way.
Be aware of bias—your own and others’. Uncover any transphobia and personal bias you may hold. Learn to recognize and interrupt gender-identity-based bullying and harassment.
Lindberg is a writer and associate editor for Teaching Tolerance.
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