What Trump's Controversial Transgender Decision Really Means, Legally
Keep your eye on the ball in the face-off over public school bathrooms. Don't be fooled into ascribing too much significance to the dueling White House "guidance" letters from the Obama and Trump teams in regards to transgender protections. See them more or less as legal briefs. Both tell us a lot about where lie the sympathies and priorities of the bureaucrats who drafted them, but neither will formally determine the core issue of where our kids can go to the bathroom when at school. The fate of transgender student rights under President Trump ultimately will be determined by Congress and the courts-not by the Department of Education or some White House lawyer.
The Obama administration took the view that transgender students should be treated "consistent with their gender identity," rather than by the gender of their birth if they so choose, and that a reasonable reading of federal laws and regulations permits such an interpretation (including such treatment at the local level). The Trump administration, on the other hand, now says that federal law does not necessarily permit or require this protection and that the question, in any event, should be resolved by local and state school officials.
The justices in Washington surely will consider both positions next month when the Supreme Court hears oral argument in the case of Gloucester County School Board v. G.G. At its heart, the case is about Gavin Grimm, a transgender teenager in Virginia who merely wanted to use the high school bathroom of the gender to which he identified. But the justices surely won't focus on that wrenching story this spring. Instead, we'll hear a great deal about Title IX, the federal law at the center of the dispute, and about how much deference the courts ought to give an agency-like the Department of Education-when its officials interpret their own rules and regulations.
It surely hurts the cause of transgender students everywhere that the Trump team interprets federal law differently than did the Obama team. It sends a signal to local school boards that any new recognition of transgender rights must come first from parents and school officials; the very folks who, in Gloucester County anyway, voted to deny Grimm the ability to use the bathroom he wanted to use. To those local school officials and parents who would like to offer better protection for transgender students, on the other hand, it sends a clear message: the Trump administration is not on your side.
In the midst of all these signals, there will be plenty of noise, too. And, as the Trump team says, "confusion." Which is why so many school administrators on both sides of this dispute (and all over the country) in the end just want the same thing: clarity. Clarity so they can tell angry parents what the law permits and what it precludes. Clarity so that the time-consuming and divisive litigation will ease. Clarity so that their schools can again focus on education and not on their role as battlefields in the latest culture war.
The fate of transgender student rights in the Age of Trump ultimately will be determined by Congress and the courts and not by the Department of Education or some White House lawyer.
So these dueling federal directives or "Dear Colleague" letters are not everything and they're not nothing. School districts that want to recognize broader transgender rights still will be free to do so (subject, I suppose, to lawsuits from angry parents who will make the dubious argument that giving rights to some people jeopardizes the rights of others). And school districts that want to restrict transgender rights (like the Virginia school district in our Grimm case) will face continued litigation until the legal issues finally are resolved. This is a bottom-up legal dispute. Congress and the courts can help solve the problem, but they aren't responsible for initiating it.
All of which is why it is easy to forecast a ruling from the justices that returns the case to the lower courts to sort out precisely what ought to happen next. It is easy to forecast a compromise decision that signals that more transgender rights are on the horizon even if the Court doesn't recognize them in time to help Grimm. It's harder to envision a landmark case that decides all of this on the merits.
It also is easy to predict a cynical decision from the justices that disappoints Grimm but invites Congress to broaden Title IX to more pointedly recognize the rights of young people like him (a legislative response we all know is not going to happen). And it is even easier to predict a fierce legislative response from Congressional Republicans if the Supreme Court does recognize broader transgender rights as a result of this case. Can't you just see Mitch McConnell and company rushing to restrict the scope of Title IX? I sure can.
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