Those laws fulfill the Declaration of Independence's aspirational assertion that "all men [sic] are created equal" and give concrete meaning to the Fourteenth Amendment's clause that guarantees "equal protection of the laws" to "any person."
Nothing in those founding documents suggests that equal rights were to vary as Americans migrated from one colony to another or after the Civil War from one state to another. Yet, despite the late 20th century federal laws on equal education, the so-called Trump administration now says the rights of transgender students in public schools are a "states rights" issue.
Barely a month in office, the Trump administration cheered its social conservative constituency last week [Feb. 22] by rescinding controversial guidance issued by the Obama administration's Education Department on transgender students. The guidance, issued under the prohibition against sex discrimination embodied in Title IX of the Education Amendments Act of 1972, instructed schools to allow transgender students to use bathrooms and locker rooms based on their gender identity instead of their sex at birth.
By way of reference, Title IX reads as follows: "No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance." The law applies not only to K-12 public schools but also to public and private higher education. The omnibus measure was approved by the Democratic-majority Congress by a 2-1 majority in the House of Representatives and an 88-6 vote in the Senate and then signed into law by the Republican president, Richard M. Nixon.
To some extent, Title IX was modeled on a provision in the Civil Rights Act of 1964, known as Title VI, that uses the same language to prohibit any federally funded programs from discriminating on the basis of race, color, or national origin. Title IX's most visible impact perhaps has been its use to require schools and colleges and universities to significantly expand opportunities for women in athletic programs.
The debate over the law's impact on transgender students is of recent vintage and reached a critical point with policy guidance issued in April 2014 by Obama's Department of Education and the department's Office of Civil Rights (OCR). “Title IX’s sex discrimination prohibition extends to claims of discrimination based on gender identity or failure to conform to stereotypical notions of masculinity or femininity," the document stated, "and OCR accepts such complaints for investigation.”
Consistent with that position, the Education Department began telling local school districts with sex-separated facilities such as bathrooms and locker rooms to allow transgender students to use the facilities consistent with their gender identity. The department formalized that advice in a letter in May 2016 signed by the civil rights chiefs of the departments of Education and Justice and addressed to school officials nationwide with the salutation "Dear Colleague."
The letter came a few weeks after the Fourth U.S. Circuit Court of Appeals had ruled in favor of a Virginia transgender high school student, Gavin Grimm, who had sued the Gloucester County School Board over its decision to bar him from using the boys' bathrooms and locker room at his school. The school board took that case to the Supreme Court, which is currently scheduled to hear arguments on March 28 unless the Trump administration's shift prompts the justices to pull the case from the calendar.
In rescinding the Obama administration guidance, Trump administration officials said it was causing "confusion" for school districts. The rescission came under the name of two Trump cabinet officials, Attorney General Jeff Sessions and Education Secretary Betsy DeVos. Sessions' role came as no surprise: he has opposed expansions of LGBT rights in any form, whether as marriage rights or anti-discrimination statutes. Surprisingly, DeVos, confirmed thanks to the vice president's tie-breaking vote after a 50-50 party-line split in the Senate, was reported to have resisted the move.
In her confirmation hearing, DeVos had indicated little, if any, awareness of another major civil rights law: the Individuals With Disabilities Education Act, known by the acronym IDEA. That law was approved by the Democratic-majority Congress in 1990 by voice vote in both chambers and signed with much fanfare by the Republican president George H.W. Bush. In her testimony, DeVos said educating pupils with disabilities should be left up to the states.
Congress included Title VI in the Civil Rights Act of 1964 because, even after a decade of Supreme Court desegregation rulings, state and local governments were discriminating against African Americans in schools and other municipal facilities. Title IX was needed to correct the gross imbalance in, for example, scholarships available to women. IDEA was needed because so many schools were disadvantaging pupils with physical or mental disabilities despite other, broader federal laws requiring accommodations for individuals with disabilities.
In Gavin's case, his school was willing to accommodate his request, but the school board overrode the administrators after a public outcry exemplified by the concerned citizen who called Gavin "a freak" during one public session. Transgender students deserve better: they deserve the equal protection of the laws, in red states and blue states alike. That would make America great, again.