The fight for transgender rights — playing out in bathrooms and locker rooms across the country — shows no sign of abating anytime soon. Last week, after the Trump administration rescinded Obama-era federal guidance clarifying transgender protections under federal law Title IX, officials from a handful of blue states publicly affirmed existing protections for trans students under state law. Meanwhile, some lawmakers in largely red states are still determined to push through bills that would restrict transgender student rights.
The guidance offered by the Obama administration last May, known as the “Dear Colleague” letter, interpreted Title IX, which prohibits gender discrimination at federally funded schools, to also protect against discrimination on the basis of gender identity. Attorneys representing Gavin Grimm, a transgender teenager from Virginia, in the upcoming Supreme Court case, however, hold that Title IX already protects against discrimination on the basis of gender identity, regardless of the “Dear Colleague” letter revoked last week.
While the application of Title IX is up for debate in the nation’s highest court on March 28, some states have laws specifically geared towards protecting trans students.
For example, 18 states, plus Washington, D.C., passed laws that make bullying or harassing trans students in school a crime, but courts in some instances have ruled that those anti-harassment provisions also guarantee access to bathrooms consistent with gender identity, such as the landmark case in Maine three years ago. Similarly, in Dec. 2015, a regulation allowing access to public restrooms and locker rooms — which includes school facilities — consistent with gender identity in Washington state went into effect.
Only five states, including D.C., have laws that contain explicit language to allow bathroom access consistent with a student’s gender identity, rather than the biological sex they were assigned at birth.
Critics of Obama argued that the “Dear Colleague” letter, issued last year, was another example of federal overreach under his leadership, forcing states to adopt his ideological agenda. But even though that letter has been revoked, lawmakers in some states are determined to push through anti-trans bills.
So-called “bathroom bills,” that specifically target restroom access for trans students in schools, are currently pending in six state legislatures. North Carolina’s lawmakers are still wrestling over their infamous bathroom bill, which former Gov. Pat McCrory signed into law last May, costing the state millions of dollars as a result of boycotts and sparked the federal-state standoff over trans rights. Other bills under consideration, such as in Alabama or Missouri, seek broader restroom restrictions in public facilities for trans residents, which, if passed, may be interpreted to include schools.