by Philip Erdman
Recently, the Trump Administration scrapped the Obama Administrative directive that ordered schools to let students who identify as transgender, use bathrooms and locker rooms per the gender they identify with. The result was an instant wave of public panic and outcry, which was to be expected.
Part of the reason for the public’s reaction was a failure to realize that the Obama Administrative directive was not the sole source of protection existing for students who identify as transgender. The directive merely instructed schools on how they were too treat a situation in which a student who identifies as transgender was using a bathroom or locker room of the opposite sex (biologically).
Protections exist for students who identify as transgender and have existed before the Obama Administrative directive was released. Some of the reasons that the directive was scrapped consist of; a rash of lawsuits nationwide speaking against the law, a possible overreach by the federal government, an appearance of blackmail (where federal funds can be withdrawn from schools who choose not to follow the directive), an apparent abuse of Title IX (by incorporating and extending the law to parties who may not have been intended to be included in the law or attaching it to circumstances that were not intended to be including: students who identify as transgender picking which bathroom or locker room they use).
The current administration believes that the individual states should decide how these policies unfold and that the federal government should not dictate (through the power of the purse) what action(s) a school should take in these unique circumstances. The previous administration believed that allowing a student who identifies as transgender to pick which bathroom or locker room they used was inherent in Title IX and therefore, they felt justified in instructing schools on how to handle the situation. Arguments can be made for both sides, but at the end of the day it is about the separation of powers, who as jurisdiction (and how far does their jurisdiction extend), and are the directives constitutional. Sometimes we forget in the midst of our emotions that, no matter how strongly we agree or disagree with something, the Constitution is the highest law of the land and there are people who have been tasked with implementing it through their various roles and tasks. The Supreme Court will end up hearing this case and they will either make a ruling or refer it back to a lower court.
Emma’s _Politico_ article succeeds in demonstrating how federalism influences the manner in which the transgender bathroom use issue unfolds. The issue involves both the state and federal levels of government, as well as the three branches of government: Title IX originated with legislation passed by Congress, presidents and executive agencies have offered guidance in the law’s application to transgender students, and federal courts, including the Supreme Court, will determine the ultimate constitutionality of Title IX’s applicability to this issue. Additionally, advocacy groups make their voices heard and attempt to influence each level and branch of government to promote their respective interpretations of the issue. Emma highlights two such groups on opposing sides of the current debate: the American Civil Liberties Union (supporting the contention that transgender students may use bathrooms consistent with their gender identities), and the Alliance Defending Freedom (opposing the same). All of these components will contribute to the eventual determination of Title IX’s application to LGBTQ students as the question plays out in the federalist system.
Thanks for sharing this thorough article presenting the key players involved in this important contemporary issue.
Like Kim’s comment, I think this article goes to show government at work. We see an administration take a previous administration’s policy and overturn it with one quick sweep. Even more important we see where the Supreme Court is stepping in to make a decision if this is something they can rule on or pass to a lower court to handle. Lastly, we see Congress making remarks on how they feel about the policy, even within the President’s party. What this boils down to is, the United States government is a living breathing thing that grows and adapts with every administration and policy. We can see a party unite over a common policy, whereas others may create a divided party, policies that unite two parties where other become the driving force for separation. Overall, in my opinion, I do believe that a rule should come from the Supreme Court to hear this case. It is important for members of the LBGTQ community get an answer and hopefully that ruling will ensure protection for their community under Title IX.
In my opinion, this article provides us with perspective on the many challenges this country has yet to overcome. We strive for equality and liberty for years to come. Our government goes through constant growth through with the different administrations.
I agree with Rich that the ruling should be coming from the supreme court and not a lower level in this case. It is an important issue and the LBGTQ community needs to be protected under the Title IX.
This is a tough situation. I do not believe it was right for the current president to revoke this administrative directive. I do agree that it is definitely a Supreme Court issue. I feel that the Supreme Court should rule on the legality of this measure as all citizens, no matter their race, creed, sex or identified gender, should be denied the opportunity to use the restroom that they feel most comfortable with/identify with. Most people are under the impression that transgender people “change” in order to, in the case of males changing their gender to become female, get a ‘glimpse’ into life as a woman.
Consequently, I also feel that this could potentially be a state’s rights issue. Since transgender people live across our nation, let alone our world, if a state were to revoke this piece of legislation, transgender people may be able to use their identified restroom in one state, but not another. Again, this brings to speculation that the Supreme Court should rule on this legislation and not turn it back to the states.
This article, or rather the meaning behind it relates to almost every other policy decision in regards to the balance of power and the constitution. It is the same argument of whether the issue is a federal or a state issue, and this concept is reflected in almost any other political issue or law. However I do think it is up to the supreme court to make the decision on protections regarding transgender students in school, as the court is the one that decides if the law is constitutional. There are arguments on both sides of the issue, it will be interesting to see the supreme court decision.
As I read Caitlin Emma’s article I had to wonder about Trump’s real intentions in scrapping Obama’s directive designed to protect the rights of transgender students. After all, during his campaign Trump (referring to the recent Florida gay nightclub massacre in Florida)
promised that “… in Orlando, … 49 wonderful Americans were savagely murdered by an Islamic terrorist. … the terrorist targeted the LGBT community. No good. And we’re going to stop it. As your president, I will do everything in my power to protect our LGBTQ citizens from the violence and oppression of a hateful foreign ideology, believe me. And I have to say as a Republican, it is so nice to hear you cheering for what I just said.” What happened to this great concern for the LGBTQ community? Does it only go into effect when the threat comes from Islamic terrorists? Does it no longer matter when the threat comes in the form of daily victimization of students at the hands of “teachers, administrators and peers” and leads to bullying, low self-esteem and high rates of suicide? Is it possible that Trump, like many Republicans, genuinely believes that former President Obama’s threat to deprive schools, districts, colleges and universities of federal funds if they did not comply with his policy to bar discrimination based on gender identity was a glaring example of federal overreaching? Or is Trump’s desire to completely erase every trace of the Obama legacy clouding his political judgement? After all, if the real issue that most people have with this policy is that it violates students’ privacy then why not come up with an alternative plan to accommodate the privacy concerns of students while also ensuring the rights and safety of all students regardless of gender identity.