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Friday, February 24, 2017




Sources: ABC News, The Economist, Charlotte Observer, YouTube

**** The Trump administration reverses guidelines on transgender bathrooms

But presidents cannot change the law and it is up to courts to enforce it

ON February 22nd, the Trump administration announced it would withdraw its predecessor’s guidelines regarding the accommodation of transgender students in America’s government-funded schools.

Sean Spicer, Donald Trump’s press secretary, said that the president had “made it clear throughout the campaign that he’s a firm believer in states’ rights”. Issues like transgender bathroom access, he added, “are not best dealt with at the federal level".

The move has disheartened liberals and cheered conservatives, but its impact is likely to be more limited than either side expects.

Nine months ago, officials from the education and justice departments officials sent a letter and 25-page instructional pamphlet to school districts across the country.

The message was simple:

America’s schools should permit transgender students to use the bathroom that matches their gender identity.

In the face of new laws in North Carolina and other states imposing a biological test on bathroom access, the Obama administration noted that “the desire to accommodate others’ discomfort cannot justify a policy that singles out and disadvantages a particular class of students.”

This principle, it added, is “consistently recognised in civil rights cases”.

Thirteen states immediately challenged the letter in court. Days before the school year began last autumn, a federal district judge issued a nationwide injunction barring its enforcement.

The Obama administration, Reed O’Connor ruled, had not followed appropriate procedures before offering its interpretation of Title VII and Title IX of the Civil Rights Act of 1964 and how those provisions bear on the protections due to transgender students.

Mr O'Connor confirmed in October 2016 that his order against Mr Obama’s transgender policy applied not just in the 13 states that brought the challenge but to every school district in the country.

Later that month, the Supreme Court agreed to consider the case of Gavin Grimm, a transgender boy now in his final semester at a Virginia high school that will not permit him to use the boy’s bathroom. Mr Grimm’s complaint is set for argument at the court on March 28th.

Civil-rights groups and left-leaning politicians reacted with dismay to Mr Trump’s change of policy.

A representative from the American Civil Liberties Union said the move “shows that the president’s promise to protect LGBT rights was just empty rhetoric”.

Maura Healey, the attorney-general for Massachusetts, wrote that Mr Trump “is sending a message that discrimination is acceptable”. Dick Durbin, a Democratic senator from Illinois, called it “a major setback in the fight for civil rights”. Conservatives, meanwhile, are cheering the about-face.

Gary McCaleb, a lawyer at the right-wing Alliance Defending Freedom, said, “No longer will federal officials distort federal law that is meant to equalise educational opportunities for women, and no longer will they force local officials to intermingle boys and girls within private areas like locker rooms, showers, hotel rooms on school trips, and restrooms".

Two considerations should temper reactions on both sides. First, Mr Trump’s change of policy is not a wholesale reversal of Mr Obama’s stance on trans rights; it is, instead, a withdrawal pending further consideration.

The “Dear colleague” letter issued on February 23rd criticises the May 2016 missive, along with another guidance letter from January 2015, in brief and general terms: “These guidance documents do not...contain extensive legal analysis or explain how the position is consistent with the express language of Title IX”.

It then briefly recounts the litigation battle over bathrooms, noting the legal dispute over whether discrimination against transgender people amounts to “sex” discrimination. But Mr Trump’s letter does not itself stake out a definitive claim:

The government “has decided to withdraw and rescind” Mr Obama’s guidance, it reads, “in order to further and more completely consider the legal issues involved”.

And the letter closes by affirming that protections are still in place against “discrimination, bullying and harassment” and that “all students, including LGBT students” deserve to attend schools where they “are able to learn and thrive in a safe environment”.

This rather conciliatory closing, along with the lack of a full-throated condemnation of Mr Obama’s position, may owe something to squabbling inside the White House over the move: it appears that Betsy DeVos, the new Education secretary, opposed the change but bowed to the demands of Jeff Sessions, the attorney-general, after Mr Trump intervened.

So Mr Trump’s change of policy is quite a bit softer, both in tone and content, than it might have been.

A second factor mitigates the significance of the change still further: whatever a president’s spin on civil-rights law may be, the law itself remains the same. “With or without guidance”, the National Women’s Law Centre tweeted yesterday, “Title IX is still the law of the land & schools still have an obligation to protect trans students.” Many states have already adopted transgender-friendly policies in their schools.

States that do not offer adequate accommodations will face lawsuits, and it will be up the courts—not the executive branch—to interpret and enforce the law.

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