Caving in on LGBTQ rights
Aand as president, Donald Trump has portrayed himself as sympathetic to gay, lesbian and transgender Americans. But much of the goodwill Trump earned with his earlier gestures was lost Wednesday when his administration announced that it was rescinding existing directives to protect perhaps the most vulnerable LGBTQ residents — transgender schoolchildren.
Under the Obama administration, the departments of Education and Justice had informed schools receiving federal funds that they must allow students to use restrooms and locker rooms that match the gender with which they identify. These directives had been put on hold by a federal judge, but on Wednesday those departments canceled them altogether in a brief letter.
Although the letter is couched in terms of deference to “the primary role of the states and local school districts in establishing educational policy,” the political genesis of the change is obvious. Religious conservatives, who provided Trump with significant support, long have stirred up hysteria over the imaginary danger to children posed by allowing transgender children to use facilities of the gender they identify with rather than the one on their birth certificate.
It’s also true that many parents and school administrators, even if they don’t subscribe to such propaganda, may not understand that being forced to use a bathroom or changing room of a gender with which you don’t identify — or even a special room set aside for you because you’re “different” — can reinforce a sense of marginalization.
The directives withdrawn by the Trump administration were based on a legal interpretation of a 1972 federal law that prohibits schools from denying benefits to students “on the basis of sex.” The Obama Education Department interpreted that — persuasively — to include discrimination on the basis of gender identity. A federal judge in Texas disagreed, and last year issued a nationwide injunction. Because of that order, the immediate effect of the Trump administration’s action is limited.
Still, the administration’s shameful shift of policy could have legal consequences. Next month the Supreme Court is scheduled to hear arguments in the case of Gavin Grimm, a transgender boy who is seeking to use the boys’ restroom at his Virginia high school. In ruling for Grimm, a federal appeals court had relied on the Obama administration’s interpretation of the 1972 law. With the Trump administration’s change of policy, the justices might send the case back to the appeals court.
The better course would be for the Supreme Court to squarely address the issue of whether the law against sex discrimination in education protects transgender students and allows them to fully express their gender identity. We think it does, regardless of what the Trump administration says.