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Trump Will Lose the Fight Over Bathrooms for Transgender Students

ADA Sign Depot

February 23, 2017

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Bathrooms for Transgender Students

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Bathrooms for Transgender Students

Transgender students already are subject to more violence and harassment — both by other children and by adults — than their non-transgender peers. These obstacles help explain why many transgender students drop out of school, why nearly half of transgender children have considered suicide and why a quarter of them have attempted it.

On Wednesday evening, the departments of Education and Justice, at the direction of President Trump, withdrew important guidance that required schools to treat transgender boys and girls like other boys and girls under Title IX, the 1972 federal law that prohibits sex discrimination in education.

In a one-and-a-half-page letter, the government unceremoniously retreated from a position — that transgender students may not be excluded from restrooms and locker rooms that match their gender identity — which the Department of Education had held for at least four years. Despite those years of experience, the government claims that it needs to “further and more completely consider the legal issues involved.”

But there is nothing new about the idea that sex discrimination includes discrimination against transgender people. To the contrary, courts have repeatedly reached that conclusion over the past 15 years in decisions that involve prisons, banks, the workplace and, yes, schools. That’s because it’s impossible to take into account someone’s transgender status or gender identity — their internal sense of being male, female or something else — without taking into account their sex. Indeed, transgender people are defined by the fact that their gender identity does not match the sex given to them at birth.

By insisting that more study is warranted to decide whether transgender students should be treated fairly, the government has sent a deeply concerning message to transgender students that they are less than other students, and unworthy of protection.

That would be a damaging thing for the Department of Education to do to anyone. But it is especially troubling here, given that transgender students already are subject to more violence and harassment — both by other children and by adults — than their non-transgender peers. These obstacles help explain why many transgender students drop out of school, why nearly half of transgender children have considered suicide and why a quarter of them have attempted it. What’s more, discrimination in schools has far-reaching and lifelong consequences for transgender people — psychologically and financially.

Although the letter notes that the law protects transgender students, like all students, from discrimination, bullying and harassment, requiring transgender students to use separate facilities from those used by other students is itself a form of discrimination. It’s humiliating and degrading to be told that your very presence in a restroom is unacceptable. And it’s stigmatizing to be forced to use facilities different from the ones used by everyone else.

That’s why a host of federal agencies, including the Department of Housing and Urban Development, the Department of Labor and the Equal Employment Opportunity Commission have concluded that transgender people should be allowed to use the facilities that match the gender they live every day.

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Putting the government’s imprimatur on different and unequal treatment will do nothing but encourage bullying and harassment by other students, not defeat it. After all, children imitate.

The letter also falsely suggests that the departments need more time to take into account the experience of states and local school districts. But proper regard for the experience of school administrators on the ground weighs in favor of inclusion, not against it. School districts across the country that have adopted inclusive policies have enjoyed a safer and more welcoming learning environment for all students, transgender and not.

Fortunately, the president and his executive agencies cannot change what Title IX says and means. Those jobs still belong to Congress and the federal courts. The Supreme Court is about to hear the case of Gavin Grimm, a 17-year-old boy whose Gloucester County, Va., school district barred him from using the boys’ restrooms because he is transgender. Although Gavin used those facilities — with permission from the school’s principal — for weeks without incident, the school board adopted a policy excluding him from the boys’ restrooms after some parents learned that a transgender boy was using them.

Gavin, then a sophomore in high school, displayed a hard-won maturity when he spoke at a recorded school board hearing and pleaded, “All I want to do is be a normal child and use the restroom in peace.” Unmoved, an adult in the community called Gavin a “freak” and compared him to a person who thinks he is a dog and wants to urinate on a fire hydrant.

A lower court has ruled in Gavin’s favor, as have most courts to consider the question. Now, the Supreme Court must soon solidify protections for Gavin and students like him across the country. Gavin’s case could neutralize the Trump administration’s cruel dispatch directed at vulnerable transgender youth. We have warned President Trump many times that we’ll see him in court, but this time, we’re already there.



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