Both the Civil Rights Act and Title IX provisions of federal law extend federal protection to students and educators against any form of sexual discrimination in learning institutions. Under this auspices, conservative interpretation calls for schools policies to be gender-neutral, while a liberal interpretation calls for active protection and safeguarding of sexual identity amongst students.
In the revoked guidelines, President Obama had instructed public institutions to allow transgender persons to use bathrooms that corresponded to their gender identity. According to the guidelines, they were meant to eradicate discrimination, build a conducive environment for transgender persons, and promote social cohesion. Failure for any public school to implement the guidelines was to be detrimental to their ability to secure federal funding. In revoking the guidelines, President Trump gives a caveat to public institutions to determine the manner in which their restrooms are used by students.
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Specifically, by revoking them, schools no longer fear that federal funding would be withdrawn should they require students to use bathrooms that correspond to their physical gender identity.
Despite the resultant condemnation and backlash surrounding President Trump’s rescinding of the guidelines, such an outcome was inevitable and appropriate.
To begin with, constitutional law experts had questioned the legality and legitimacy of the guidelines. To most scholars, irrespective of the merits of the guidelines they are an illegality as the executive does not possess the mandate to intervene in local affairs of public schools. Without the clear legislative mandate, it was felt, invoking executive prerogative to interfere in the administration of local schools was an overreach of the executive. Hence, it was appropriate for President Trump to rescind the guidelines and pursue legislative measures to enact the desired outcomes.
Also, the withdrawal of the guidelines has been contended to be permissible, as it does not strip students of Title IX protection.
Proponents advance the argument that there exist sufficient safeguards and protection within Title IX to ensure that transgender persons are protected from any form of sexual discrimination. Allowing the guidelines to stand would have been excessive regulation and may have fermented ill-feelings and hostility towards transgender persons. Furthermore, within the Order rescinding the guidelines, there has been an emphasis on the role of schools to protect transgender persons from bullying and other forms of intimidation.
Additionally, there have been security concerns regarding the accessibility of restrooms by pedophiles and other unsuitable characters. Some parents consider it an unacceptable risk for schools to allow mixing of genders in restrooms as persons of inappropriate characters may easily intimidate, exploit, or harm minors. While such concerns do not reflect the public attitude towards transgender persons, they reflect the permissive concern that it would be easy for people to exploit rules allowing choice in the bathrooms to be used.
Moreover, privacy concerns have been contentious as washrooms are considered safe areas where persons of a similar gender may find safety. To activists, allowing the unfettered access of bathrooms would result in a minority group compromising the privacy of the majority. For a counter-majoritarian approach, some parents considered that such a policy would jeopardize the privacy of their children at a vulnerable stage in development.
Consequently, given the questionable nature of the legality of the original guidelines, it was appropriate for the President to revoke them awaiting legislative mandate. There exist sufficient protection for transgender persons within Title IX and other non-discrimination provisions if they are proactively utilized.
