Protecting Basic Student Rights is No Longer a Federal Matter

Blog Post
Feb. 24, 2017

This week, the Trump administration rolled back Obama-era protections for transgender (trans) students that had allowed them to use the bathroom corresponding to their gender in school. A letter to schools on the decision criticizes the Obama administration’s directive for its “lack of legal analysis” and federal overreach in extending Title IX protections to cover gender identity. Cabinet officials, including Secretary DeVos, said that allowing trans students to use the appropriate bathroom is a matter “best left to the states.” The Secretary said in the same statement that the Department is still “committed to protecting all students.”

The decision was not unanimous. Reports show that DeVos, in keeping with her reputation for being quietly pro-LGBT, was a dissenting voice in the order before resigning to the decision to leave it to the states. She reached a stalemate with Attorney General Jeff Sessions, who then took the issue to the President, who then sided in favor. Per DeVos’ suggestion, the order does include a provision requiring “all schools [to] ensure that students, including L.G.B.T. students, are able to learn and thrive in a safe environment.” Unfortunately, in an order that strips these students of basic rights and offers no guidance for their protection going forward, this provision carries little weight.

The freedom to use the appropriate restroom falls clearly under the basic human right to dignity  and respect. Without this freedom, trans students are forced to either deny who they are or be subject to government-sanctioned harassment. The ‘Dear Colleague’ letter to schools also explains that “schools must ensure that all students, including LGBT students, are able to learn and thrive in a safe environment,” but it’s clear that repealing this directive achieves exactly the opposite. By targeting the place where gender identity is most clearly on display, it creates unsafe environments for trans students and makes them targets among both their peers and school administrators.

This is a direct attack on one of the most vulnerable student populations — LGBT students in socially conservative schools. Research shows that the highest dropout and bullying rates among LGBT students are in conservative and religious schools — the same schools that will likely be the first to repeal transgender bathroom laws. LGBT students in these schools already have very little visibility, representation, or protection and with this order, they will have even less.

Giving schools this option to discriminate in no way helps protect all students, as the letter suggests. Instead, it merely gives conservative or religious schools the opportunity to pick and choose exactly which students will not be treated with dignity and respect. While any school may still decide to allow students to use the restroom of their choice, the order is not helping to create safer schools, since all students already had these protections in place under the Obama administration.

Beyond the intentions and implications of the decision, the order itself raises an important question about the role of the administration in protecting students: If it is not the responsibility of the federal government to protect students’ basic rights, whose responsibility is it? If civil rights clash with social conservatism in the future, will they inevitably become state issues? If this decision is any indication, we might expect states to gain power over whether or not to enforce other protections included, for example, in the Civil Rights Act of 1964, the Rehabilitation Act of 1973, or the Immigration Reform and Control Act of 1986.

It is only recently that LGBT people have begun to secure these basic human rights — life, safety, security — that are necessary for attaining other freedoms. This order is a clear message from the Trump administration that it does not believe that LGBT people deserve even the most basic freedoms. If trans students are denied the right to safety in tasks as mundane as using a restroom, they and their allies certainly cannot begin to advocate for other equitable opportunities in school. This decision is a message to trans students that the administration does not consider them valid citizens. It should also be a message that the fight for basic human rights has only just begun.