What Does President Trump's Rollback of Transgender Student Protections Mean for the States?
The Obama administration's directive on transgender bathroom use was rollbacked by the Trump administration yesterday
For months, both Democrats and Republicans alike suspected that President Donald Trump would not retain federal protections for transgender students that were put in place by an Obama directive. And on Wednesday, it was official: Attorney General Jeff Sessions and Secretary of Education Betsy DeVos announced the rollback of the directive, though they did say that other federal laws would still offer discrimination protections to LGBT students.
“The Department of Justice has a duty to enforce the law,” Sessions said in a statement. “The prior guidance documents did not contain sufficient legal analysis or explain how the interpretation was consistent [with federal law.] The Department of Education and the Department of Justice therefore have withdrawn the guidance.”
However, Joshua Block, Senior Staff Attorney, ACLU LGBT & HIV Project, says that the Obama policy on how to read Title IX was crafted based on years of work and research.
“[It] took years and years of work [by the U.S. Department of Education] and was based on years and years of study and requests from schools for precisely this kind of guidance,” he said.
White House Press Secretary Sean Spicer said on Wednesday that the president’s view has always been that the issue should be dealt with at the state level. Trump previously echoed that sentiment during a May interview with Sean Hannity.
“It’s a new issue and right now, I just don’t have an opinion. I’d like to see the states make that decision,” he said. “I feel very strongly about that. The federal government should not be involved.”
With the Obama administration’s directive no longer in place, the issue will head back to the states, which could mean more laws restricting transgender bathroom use to align with the sex they were assigned at birth, according to Block. However, it’s unlikely any of these would take immediate effect.
And with this news, there’s been a wide variety reactions. North Carolina is the only state that’s actually passed one of the controversial “bathroom laws,” but ten other states have bills in the pipeline.
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Here’s how Trump’s actions will affect just a few of the states — and what lawmakers from those states have said about the rollback so far.
The state of North Carolina started the national debate last year, when the Public Facilities Privacy & Security Act, also known as HB 2, was signed into law by former Governor Pat McCrory. The backlash was swift, with an economic impact to the state as well. as the NBA and NCAA pulled post-season games out of the state and companies like PayPal and Deutsche Bank took jobs from the state.
Coincidentally, on the same day that Session and DeVos announced the rollback of the Obama’s administration’s directive, a bipartisan bill was introduced in the North Carolina state house to repeal HB 2. If it passes the house and the senate, it will likely be repealed, as the state now has a Democratic governor, Roy Cooper.
Last month, two bills were introduced in the Lone Star State regarding transgender bathroom use: One, restricting the use of bathrooms to the sex listed on a person’s birth certificate, and the second, outlawing unisex bathrooms and prohibiting cities from passing laws that would eliminate these restrictions.
With the Trump administration’s changes on transgender protections, the state’s Lieutenant Governor Dan Patrick says they’re planning on moving forward with both bills.
“This is not discriminatory. It’s common sense, common decency and public safety,” Patrick said during a visit to KTSA radio in San Antonio. “This is the left gone mad; they’ve gone too far on this issue.”
However, there’s been an appeal from a group of 40 investors to reject the bill, arguing that it would harm the Texan economy and businesses, like a similar law did in North Carolina.
Illinois is one of the ten states with a pending bill restricting what bathrooms transgender students can use. But with a Democratic majority in the state house and senate, it’s unlikely this bill will ever make to the governor’s desk.
According to the Chicago Tribune, many Illinois educators remain undaunted by the Trump administration’s move.
“CPS led the way among school districts on bathroom policies for transgender students and staff, and we have no intention of backing down no matter what President Trump does to discriminate against the LGBTQ community,” Emily Bittner, a spokesperson for Chicago Public Schools, the state’s largest school district, said.
New York has already led the charge on issuing protections for transgender students. New York City mayor Bill DeBlasio made it illegal to prevent people from using the bathroom consistent with their gender identity in March 2016. In 2015, Governor Andrew Cuomo made harassment and discrimination based on gender identity illegal in 2015.
DeBlasio tweeted their continued support for these regulations in the wake of the Trump administration’s rollback.
A bill was introduced in the state’s assembly this month that would restrict bathroom access for transgender people, but is unlikely to become law.
Bob Ferguson, the attorney general for Washington state, said that Trump’s directive won’t change anything in his state. “I will ensure protections for transgender and gender non-conforming students are enforced fairly and vigorously,” he said.
In fact, he told BuzzFeed News that he hopes to up the protections in place for transgender people in the state. He’s previously been active in retaining these protections nationwide. Last year, Ferguson’s office led a group of 12 states to help persuade a U.S. District Court not to allow states to become exempt from the Obama administration’s protections.
Senator Chris Coons, a Democrat from Delaware, also condemned the Trump administration’s decision to revoke the directive.
“President Trump’s withdrawal of federal guidance supporting protections for transgender students is arbitrary, misguided and cruel,” he said. “This is not a states’ rights issue — it is a civil rights issue that affects students in every state across the country. It has long been settled that states must comply with federal civil rights laws, even when they disagree with particular applications of those laws. It is our obligation to protect the equal rights of American citizens, and President Trump’s withdrawal of guidance does not advance states’ rights – it legitimizes hate and discrimination.”
He also reiterated Delaware’s commitment to the state’s own protections.
“Fortunately, the Trump administration’s actions do not change our anti-discrimination laws under Title IX or the Constitution, which protect students of all gender identities. I am confident that these students’ rights will be vindicated in our courts, and I am proud to stand with them in this fight for justice.”
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Representatives from reliably blue California have also vowed to retain the protections put in place by Obama’s policy in their own state. “Transgender students will remain protected regardless of the new directive by the Trump administration pertaining to access to restrooms and locker rooms,” Michelle King, Superintendent of the Los Angeles School District, said in a statement, according to BuzzFeed News.
Last September, Governor Jerry Brown signed a bill that required all single occupant bathrooms be unisex and not restricted to be used solely by gender or sex.
According to the National Conference of State Legislatures, other cities and states that have promised to retain policies like the Obama administration’s directive include New Mexico, Seattle, Philadelphia. States with pending “bathroom bills” in place include Tennesse, Wyoming, South Carolina, Minnesota, Kentucky, Kansas, Alabama and Missouri.