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FAQ: What did Obama do for transgender students and how did Trump take it away?

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February 25, 2017
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What did Obama do for transgender students and how did Trump take it away?

In May of 2016, the U.S. Departments of Justice and Education, under the Obama Administration, issued guidance to public school districts across the country clarifying that Title IX, a federal law banning sex discrimination in education programs and activities, protects students who are transgender. The guidance issued by the Obama Administration didn’t make new law, it simply spelled out how federal law already protects transgender students from discrimination, bullying and harassment in school.

The Obama Administration guidance was accompanied by a 25-page document detailing good policies and practices successfully implemented to support transgender students in schools, colleges and universities across the country. It was a powerful and affirming statement recognizing the existence and dignity of young transgender people and the imperative that schools be safe, respectful and nurturing learning environments for all students. This guidance served as an important tool for transgender students and their families to advocate for themselves.

On February 22, 2017, the U.S. Departments of Justice and Education, now under Trump, withdrew the Obama guidance. The withdrawal of the guidance has created unnecessary confusion and sends a message that it’s okay to discriminate against transgender students.

Federal law still protects transgender students. Period.

Does this mean transgender students are not protected?

The removal of the Obama guidance does not change federal law -- a school cannot legally exclude, separate, deny benefits to, or otherwise treat transgender students differently than their non-transgender peers. Put simply, schools must treat transgender students consistent with their gender identity.  What the Obama Administration guidance did was explain to schools their legal responsibilities to comply with existing law and protect transgender students. Just because the explanation was removed doesn’t change the underlying law that protects transgender students from discrimination, bullying and harassment.

Federal law still protects transgender students. Period.

What is the federal law that protects transgender students?

Title IX of the Education Amendments Act of 1972 prohibits discrimination on the basis of sex.

“No person in the United States 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.”

A number of courts have already ruled that denying transgender people access to the restrooms that best match who they are violates federal law.

Additionally, transgender students are protected by the Equal Protection Clause of the U.S. Constitution.

Lambda Legal currently represents students at Pine-Richland High School after the school changed its policy and is refusing to let transgender students use the bathroom that best matches who they are.

Lambda Legal Pine-Richland plaintiffs Juliet Evancho and Elissa Ridenour.

What is going to happen at schools because of this?

We do not yet know how this change will play out in schools but by withdrawing the guidance, the Trump Administration has created confusion about school districts’ legal obligation to respect transgender students for who they are in all aspects of school life. Some districts might use this as an opportunity to  discriminate against transgender students, including denying them access to bathrooms and other single-sex facilities that match who they are.  This would be illegal and would expose those school districts to lawsuits.

As many school districts throughout the country have already done successfully and without incident, all schools should implement policies and practices that bring them in line with existing federal law.

Federal law still protects transgender students. Period.

What can I do if I am denied access to the bathroom or locker room that matches who I am?

If you are denied access to the bathroom or locker room that matches your gender identity, or are excluded from any educational opportunity or activity because you are transgender, please contact us; we want to hear from you. You can request help on our website or go to our Help Desk page to find a phone number for the Lambda Legal office in your region.

What if states or cities make their own laws that don’t allow transgender students to use the bathroom?

Call us. We’ll probably sue them. We are already in court in North Carolina challenging the terribly damaging and obviously unconstitutional HB 2.