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How scrapping transgender bathroom guidelines impacts schools

February 22, 2017 at 6:20 PM EDT
Federal guidelines advising schools to let transgender kids use the bathroom that corresponds to their gender identity are being withdrawn by the Departments of Justice and Education. What will the Trump administration’s change mean for schools and students? William Brangham talks to Evie Blad of Education Week.
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JUDY WOODRUFF: The Trump administration today announced that it would soon make a major change regarding the contentious issue of transgender youth and which bathrooms they use at school.

William Brangham has that story.

WILLIAM BRANGHAM: The Department of Justice and Education are expected to roll back Obama-era guidance that advises schools to let transgender kids use the bathroom that corresponds with their gender identity, not necessarily the gender they were born with.

But if that guidance goes away, what does this mean for schools?

Evie Blad from Education Week is back to help us sort it all out.

Welcome back.

EVIE BLAD, Education Week: Thank you.

WILLIAM BRANGHAM: So, let’s do this chronologically.

Last year, the Obama administration put out these guidelines. They said, if you, schools, have transgender students in your schools, let them use the bathrooms that correspond with their gender identity.

What’s the rationale for that argument?

EVIE BLAD: Well, the Obama administration argued that the sex discrimination protections in Title IX, the federal law, applied to gender identity, rather than merely biological sex.

And they had heard from many districts and states and some educational groups that there was a lack of clarity at the state and local level.

And so they put out this federal civil rights guidance to say, not only do you have to allow these children access to facilities that match their gender identity. You have to respect that on forms. You have to provide a safe learning environment free from bullying based on this identity. And you cannot disclose their transgender status if they don’t want it to be disclosed.

WILLIAM BRANGHAM: Now, a lot of states welcomed this guidance and said they were already doing those sort of practices.

A lot of states resisted. About a dozen or so sued. What was their argument against this guidance?

EVIE BLAD: Right.

Well, so there is actually two big multistate lawsuits. So, more than 20 states are litigating the issue. Their argument are — several things. Some made a student privacy argument, suggesting that it violated the privacy of students who aren’t transgender to share facilities with students who are.

And some made a states’ rights claim this was federal overreach and an abuse of the power of the department, that they weren’t actually interpreting federal law, but rather creating new policy through a back door.

WILLIAM BRANGHAM: So, if, as we expect, the Trump administration to pull back this guidance, what does that mean tomorrow or next week if I’m a transgender kid in a school somewhere in the country? What does it mean for me?

EVIE BLAD: Well, about 15 states have anti-discrimination laws that cover transgender students. So students in those states, their reality would remain the same.

And there are districts around the country that have made the decision on their own, long before this guidance, to put rules in place that largely mirror what it requires.

But for states and districts that don’t have those kinds of rules, they’re kind of on their own to interpret the federal law and to make their own determination on what they think they should do for these children.

WILLIAM BRANGHAM: Of course, this is all happening in the backdrop of a very big Supreme Court case that is happening where a boy in Virginia, a transgender boy, sued his school district to say, let me use the boys’ bathroom.

Does the withdrawal of these guidelines do anything to his standing in the Supreme Court?

EVIE BLAD: Well, to this point, many transgender students who have won in federal courts have won under the argument that the courts should defer to federal interpretation of Title IX.

And so that does take one argument away. But Gavin Grimm, the student from Virginia, can still go forward, his attorneys say, arguing about the fundamental meaning of Title IX, what was implied when it was written, and should that apply to him today?

WILLIAM BRANGHAM: One of the arguments that undergirds a lot of this, I know, is the fear that some people have expressed that, if you allow a transgender student to use the bathroom according to their gender identity, that you might have men masquerading as women, in effect, to get into a bathroom and somehow get up to no good.

Is there any evidence that that’s really something that’s going on?

EVIE BLAD: I don’t believe so.

In the districts that have had these rules for a long time, they say that they have had very little problems with them. They say that students’ requests to use them are pretty rare. The most recent estimate on transgender students said that transgender children between the ages of 13 and 17, they make up about 0.7 percent of the population.

So we’re talking about a very small number of students here. But there is some argument on the other side that it can be difficult to implement and interpret these rules for such a confusing thing as gender identity, especially when it can be in flux for some children.

WILLIAM BRANGHAM: All right, Evie Blad of Education Week, thanks so much.

EVIE BLAD: Thank you.

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