Trump administration guidance on transgender bathroom choice sparks backlash
President Donald Trump’s administration rescinded federal protections for transgender students at public schools and universities Wednesday night. Such protections, encouraged by former President Barack Obama, allowed transgender students to use the bathrooms of their gender identities.
The Obama administration issued a “Dear Colleague” letter to public schools and universities in April calling for gender identity to be protected under Title IX. The federal statute explicitly prohibits discrimination “on the basis of sex in education programs or activities operated by recipients of Federal financial assistance.”
The University of Michigan complied with such orders. It currently provides several options for transgender students. Gender-inclusive housing, such as the Gender Inclusive Living Experience in East Quad “ensure(s) that University Housing is a supportive space for residents of all gender identities and gender expressions” according to the Housing website. Such housing includes private bathrooms or dorm rooms close to gender-inclusive bathroom facilities.
In May, LGBT Michigan President Emily Kaufman, an LSA junior and transgender woman, emphasized the importance of the Obama administration taking steps to protect transgender students, given the negative stereotypes they face.
She said the University administration could do more to protect transgender students.
“The University is one of the most liberal institutions in the country, so there aren’t really any problematic regulations that I’m aware of that exist anymore,” she said in May. “There’s more things that could be done to protect LGBT, particularly trans people, that the University could be doing.”
Kaufman said when she was a freshman — early on in her transition — she lived in Gender-Inclusive Housing, but was not allowed to use the women’s restroom at East Quad Residence Hall because her gender marker was male. She said she would sometimes have to walk around the dorm to try to find a gender-inclusive bathroom in which to shower. However, she was able to use the women’s bathroom elsewhere on campus. Since then, she said, things have changed.
The letter pointed to the need for more legal analysis of Title IX, which the Obama administration did not perform.
Additionally, a statement from Attorney General Jeff Sessions, also released Wednesday, said the Departments of Justice and Education withdrew the guidance on the grounds that it did not contain such analysis and that such measures should be enacted at the local level.
“The prior guidance documents did not contain sufficient legal analysis or explain how the interpretation was consistent with the language of Title IX,” Sessions’ statement read. “Congress, state legislatures, and local governments are in a position to adopt appropriate policies or laws addressing this issue. The Department of Justice remains committed to the proper interpretation and enforcement of Title IX and to its protections for all students, including LGBTQ students, from discrimination, bullying, and harassment.”
Nevertheless, the general consensus is the new guidance will not have a direct impact on University policies.
In an email to the Daily, University spokesman Rick Fitzgerald said the University is committed to fostering an inclusive community. He directly cited the University’s non-discrimination statement from Human Resources, adding emphasis — shown bolded — to related topics.
“The University of Michigan, as an equal opportunity/affirmative action employer, complies with all applicable federal and state laws regarding nondiscrimination and affirmative action,” the statement reads. “The University of Michigan is committed to a policy of equal opportunity for all persons and does not discriminate on the basis of race, color, national origin, age, marital status, sex, sexual orientation, gender identity, gender expression, disability, religion, height, weight, or veteran status in employment, educational programs and activities, and admissions.”
State Rep. Yousef Rabhi (D–Ann Arbor) said hopefully the University will not be impacted. He pointed to the State Board of Education, which released a set of guidelines in September that explicitly allow students to use the bathrooms of their gender identities, in addition to other recommendations.
However, he said the new guidance would still have a significant impact on the nation.
“The effect that this will have is that it sends a chilling signal to the entire country that the age of respecting civil liberties is over and the new Trump administration wants to tear our people’s civil liberties and reintroduce discriminatory practices into the everyday, in this country,” he said.
According to CNN, Secretary of Education Betsy DeVos initially opposed Trump’s plans to rescind the gender identity protections. However, a source told CNN she was told to agree to the plans, which she did on Wednesday.
Rabhi said he thinks the release of this guidance is a direct threat from Trump, which he anticipates will be a repeated action in the next four years.
“I think this was another example of Trump himself sort of calling the shots over the people he appointed to his very Cabinet, and look, if DeVos didn’t like this, then she should have stopped it,” he said. “I think she had a greater role to play in this than she led everybody to believe. But of course we saw the heavy hand of Trump coming down and pushing for this.”
LSA junior Collin Kelly, chair of the University’s chapter of College Democrats, wrote in an email to the Daily it is not fair for people who are not transgender to evaluate how an action like this can affect transgender people.
“Those of us who are not trans must listen when these folks say that policies like this make them unsafe — we must support people of all gender identities and gender expressions, and all those who are marginalized by discriminatory policy,” he wrote.
He also addressed Michigan’s Elliott-Larsen Civil Rights Act, which currently does not protect against gender identity discrimination. He wrote that in conjunction with Trump's “rollbacks” of Obama’s guidance, transgender people will face more “pressure and discrimination.”
Meanwhile, according to CNN, though several states maintain laws that are consistent with the Obama administration’s “Dear Colleague” letter, some policymakers and educators believe the measure went too far, threatening the safety of non-transgender students.
The Obama administration challenged a wide-scale lawsuit led by Texas Attorney General Ken Paxton against the guidance. However, in early February, when Sessions assumed the role of Attorney General under Trump, the Justice Department withdrew this challenge.
LSA junior Grant Strobl, chairman of Young Americans for Freedom, noted that U.S. Federal Judge Reed O’Connor, among others, have already ruled the administration’s action unconstitutional.
Strobl said he agreed with Sessions’ statement regarding the interpretation of Title IX.
“(Sessions) did the right thing by keeping the Title IX definition of sex to be regarding biological and anatomical differences between men and women,” Strobl said. “That is exactly what the district court judge, (O’Connor), ruled, that was the original intent of Title IX.”
Strobl also echoed the opinion that the issue should be addressed on the local level.
“It’s a local issue,” he said. “Universities can make accommodations for transgender students any way they want. All this does is, for example, protect men and women in their privacy as well.”
Strobl said he believes people may take advantage of the guidance, therefore infringing on the rights of men and women.
“The real danger is not the transgender students,” he said. “The real danger are the people that take advantage of this law or of the ‘Dear Colleague’ letter and pretend to be in those situations and take advantage of it.”
In response to Trump’s action, Kaufman says the measure will not have an effect on the University.
“It’s not going to have any impact at the University of Michigan at all, because the University policies trump anything else,” she said.
Kaufman added that such regulation would have a much greater impact in rural areas of Michigan and the rest of the country, which is not as liberal. She voiced concern for K-12 institutions that may have to address the measure.
“While this won’t impact University of Michigan students, I’m pretty sure it is directed at high school, middle school and elementary school kids,” she said. “As far as bathrooms in high schools — that is the biggest concern. You can get urinary tract infections from having to hold in (urine) for a long time. There are a lot of health concerns with that, as well as the emotional anguish over not being able to go to the bathroom because you are trans.”
Kaufman said she believes the policy degrades transgender people.
“I think it really goes a lot to saying that trans people aren’t people with the policy,” she said. “If you’re not letting someone use the bathroom with other people, what does that make you think about them as a person?”
With LGBT Michigan, Kaufman helped organize an event titled Rethinking Normal: My Transgender Life at Rackham Auditorium on Thursday evening. The event featured Katie Rain Hill — a transgender activist, model and author who was the first openly transgender person to graduate from high school in Oklahoma. The event was in the works for months, and coincidentally fell the day after the release of Trump‘s action.
Hill spoke about her experiences as a trans woman and then spoke on the recent policies.
She said when she was in school she was threatened with expulsion for using the women’s restroom, in addition to facing extreme emotional and physical discrimination. She said she was forced to use the men’s bathroom or the nurse’s bathroom — which was halfway across campus and often inconvenient.
“It’s not just restrooms,” she said. “That’s a big issue in schools but it goes beyond that — it’s all rights that go against it. It’s all under the context of perversion — the idea that trans people are abominations or subhuman, or people who are going into bathrooms or public areas for the purpose of sexual deviation, which is simply not the case.”
She cited incidents of this nature are extremely rare.
Spectrum Center Director Will Sherry said the act is very disheartening but the University is always looking for ways to improve the experiences of students.
“I’m sad for transgender and gender queer students not just here but everywhere,” he said. “I know that our institution has a long history of supporting the LGBT community. We’ve been doing things on our campus prior to the Obama guidelines and we will continue to work towards inclusion after these guidelines.”
Sherry pointed to students’ ability to input their preferred pronouns on Wolverine Access — an initiative that began in September.
He said the University is always trying to improve. He specifically mentioned working groups that look at the best experiences for transgender and gender nonconforming students in housing and recreational sports.
“(Title IX is about) bathrooms and a lot of other things,” he said. “We work on our campus to look at all of those different areas where we can enhance inclusion and we really look to have opportunities for all our students to be able to exist and be in a place that has options that make sense for them, that validate who they are. That is the work we continue to do.”