A Mere Blip in the Bathroom Wars?

The Trump administration rescinded guidance that required federally funded schools to permit transgender students’ use of whichever restroom or locker room corresponds to their gender identity. The guidance, a “Dear Colleague” Letter the Department of Education’s Office for Civil Rights issued last May, relied on a reinterpretation of Title IX, a forty-five-year-old statute outlawing sex discrimination in schools—an interpretation the Obama administration had been rolling out, by degrees, for years.

The 2016 guidance, backed by a statutory funding mandate, redefines “sex” to include gender identity and discrimination to include the binary boy-girl segregation typical of school locker rooms and restrooms. A federal guidance, a letter from an agency that stretches an old law to address a new problem, does not need congressional approval or the normal notice-and-comment process federal agency regulations go through.

Title IX at its foundational core states that no student “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.” Fine. It notably led to equal funding for men’s and women’s collegiate sports—and, three years after it passed, it gained an amendment that smacks of Equal Rights Amendment anxiety: Schools “may provide separate toilet, locker room, and shower facilities on the basis of sex, but such facilities provided for students of one sex shall be comparable to such facilities for students of the other sex.” Except, of course, “sex” is no longer what the 1970s thought it was.

What precipitated the lately overturned guidance, an interpretation of male and female as fluid constructs, changeable designations, is not only fashionable but turns out to have already been the law of the land. When a federal agency issues a guidance document clarifying the modern meaning of a socially-consequential current law, it’s an imposition on the intent of past legislation and, typically also, a complicated burden on unsuspecting Americans.

Transgender advocates have been quick to point out the relative insignificance of the guidance document that heralded revolution last year; now that it’s gone, it didn’t carry the strength of law.

“It is an unmitigated travesty, but it doesn’t change what the law is,” said James D. Esseks, Director of the ACLU Lesbian Gay Bisexual Transgender & HIV Project. “Because the Education Department, at the end of the day, doesn’t determine what the law is. The courts do.”

Before long, they will. On March 28, the Supreme Court will hear the case of transgender high school student Gavin Grimm, 17. Gavin sued his Gloucester County, Virginia, school district in 2015, claiming that restricting his use of the boys’ room violated his civil rights. (He’d had single stall unisex bathrooms, recently built, made available to him.) The Fourth Circuit Court of Appeals ruled in his favor last year—now, a victory for the ACLU’s position in Grimm’s case would permanently restore the guidance and then some, Esseks told THE WEEKLY STANDARD.

“The courts decide what the law means, and a U.S. Supreme Court decision on what a federal statute means, that’s as authoritative as you can get. That is more important and more persuasive and more binding than guidance from the Department of Education,” said Esseks, adding that the guidance was by no means “illegitimate.”

Transgender people’s bathroom access is a matter of civil rights, per the ACLU’s position. And, as such, “leaving it up to the states”—what candidate Trump said he supported when he was asked about Obama’s guidance last spring, and what Sean Spicer reaffirmed when he announced its revocation Wednesday—sounds eerily familiar.

“This rhetoric sounds like we’re in 1950s America,” Esseks said, as if to suggest single-sex bathrooms present an injustice on par with racially-segregated public schools, bus seats, and drugstore sandwich counters. Overcoming fear and ignorance should be a simple matter of education. To know Gavin Grimm is to understand which bathroom he belongs in, I guess.

The social complications of a school-age gender transition are such intimate and personal problems that a one-size-fits-all federal solution, likely to be implemented awkwardly, can only ever complicate them further—or so say the guys on the other side.

“This ought to be an issue for states and local schools, because they can address these needs one on one with students and that personal interaction that’s never going to be there when the federal government is dictating this issue,” said Matt Sharp, legal counsel with the conservative Christian advocacy group Alliance Defending Freedom.

“The schools that we work with that are trying to pass good policies,” Sharp told me. “They go to extreme measures to try to protect every student, including those struggling with gender identity, from bullying.” Often this will mean offering alternative single-occupancy bathroom, in the nurse’s office or teachers’ lounge, and supportive counseling. If a school does not permit a student to use the bathroom or locker room that matches their professed gender identity, the Department of Education’s Office for Civil Rights was obliged, under the former guidance, to deny them dearly needed funding.

ADF, a councill of likeminded lawyers, supports twelve states’ “bathroom bills,” but if you ask, they’ll call them privacy bills. Perceived by many moderates as a needless expense—costly to a state’s national, even global, reputation and proven to inspire boycotting—the statewide a version of North Carolina’s controversial and indeed costly HB2, is worth all the fuss, Sharp told me.

The guidance’s repeal, “It both shows the need and urgency for these and makes them more likely to pass,” he said. It’s true that pending legislation at the state level, “privacy bills” in 12 states, will have more legal authority and practical permanence—if any of them pass their state legislatures, that is—than OCR’s redefintions had.

Education Secretary Betsy DeVos, meanwhile, would have preferred the guidance were upheld.

The Trump administration rescinded guidance that required federally-funded schools to permit transgender students’ use of whichever restroom or locker room corresponds to their gender identity—against opposition from Secretary DeVos.

Asked during her much-maligned Senate hearing, whether she’d uphold the guidance, DeVos assured Wisconsin senator Tammy Baldwin that she would defend all students’ right to feel safe at school. Her reported opposition to overturning the guidance might have surprised progressives who chose her as their enemy. The Secretary’s statement at the time of the guidance’ release pledged a moral commitment to protect the vulnerable: “We have a responsibility to protect every student in America and ensure that they have the freedom to learn and thrive in a safe and trusted environment. This is not merely a federal mandate, but a moral obligation no individual, school, district or state can abdicate. At my direction, the department’s Office for Civil Rights remains committed to investigating all claims of discrimination, bullying and harassment against those who are most vulnerable in our schools.”

Her opposition to the action shouldn’t be surprising, though. Privately, she’s supported gay, lesbian and transgender friends and acquaintances for decades, before some prominent Democrats had likewise “evolved.” It sends a discouraging message to children and families already predisposed to distrust this administration. With far more consequential legal battles on the near horizon, and given the dubious extralegal authority of a federal guidance from OCR, its rescission doesn’t amount to much than what DeVos might call needless bullying. Her stance might also stem from a teacherly knowledge of checks and balances: The Supreme Court will lastingly decide what the last administration’s letter about gender lacked the authority, on its own, to dictate.