President Trump Revokes Obama’s Protections for Transgender Students

Lev Craig

On Wednesday, President Trump rescinded protections implemented by the Obama administration which had, among other things, allowed transgender students to use the school restrooms and facilities corresponding with their gender identities.

Title IX of the Civil Rights Act of 1964 (Title IX) prohibits discrimination on the basis of sex in federally funded education programs, but does not explicitly protect transgender individuals. Last May, the Obama administration issued guidance regarding transgender students to all public schools in the U.S. in a joint letter from the Departments of Justice and Education. The guidance stated that both departments interpret Title IX’s prohibition against sex discrimination as encompassing “discrimination based on a student’s gender identity, including discrimination based on a student’s transgender status” and that the departments “treat a student’s gender identity as the student’s sex for purposes of Title IX and its implementing regulations.” Effectively, the guidance required schools to treat transgender students the same as non-transgender students of the same gender for Title IX purposes—for example, schools could not subject transgender girls to different rules and policies than non-transgender girls—and prohibited schools from discriminating against students on the basis of transgender status.

In addition to requiring schools to “allow transgender students access to [bathrooms and locker rooms] consistent with their gender identity,” the letter addressed single-sex classes, gendered housing, athletics, and other sex-specific activities.  The guidance required schools to allow transgender students to participate in most sex-segregated activities in accordance with their gender identity. For example, a school could not prohibit a transgender boy from living in boys’ housing, nor could it exclude a transgender girl from a school dance because she planned to wear a dress.  The guidance did not change any applicable law, but instead “inform[ed] recipients about how the Departments evaluate whether covered entities are complying with their legal obligations” under Title IX. In other words, if schools refused to comply with the guidance, they could be at risk of losing federal funding.

On Wednesday, the Trump administration withdrew these protections, stating that the Obama guidance documents “do not … contain extensive legal analysis or explain how the position is consistent with the express language of Title IX, nor did they undergo any formal public process” and that “the Departments believe that, in this context, there must be due regard for the primary role of the States and local school districts in establishing educational policy.” Although schools are still free to establish their own trans-inclusive policies, Trump’s reversal means that schools may now establish policies that treat transgender students as their assigned sex—i.e., treating transgender girls as male and transgender boys as female—without the possibility of losing federal funding.

Transgender employees and students in New York are protected by state and city laws. New York City provides guidelines for creating an inclusive and nondiscriminatory environment for trans students, and gender identity discrimination in education and employment is prohibited under the New York State and City Human Rights Laws. If your employer has discriminated against you because you are transgender, contact The Harman Firm, LLP.