Yesterday, the Trump administration dealt a blow to LGTBQ students and advocates across the country, rescinding Obama-era guidelines for protecting transgender students in public schools
The announcement, which came in a letter (see below) from Department of Justice and the Department of Education officials, said that the administration is withdrawing guidance put forward by the Obama administration to public school systems last May
. The Obama administration's guidance, which was legally nonbinding, directed schools to let students use the bathrooms and locker rooms that correspond with their gender identities. The federal law the Obama White House cited, Title IX, prohibits sex discrimination in schools.
In other words, the Trump administration just withdrew the Obama administration's informal guidance on trans students' bathroom use. While this means that transgender students, already vulnerable to bullying, certainly have no ally in Trump's White House, it's unclear how the decision will play out in North Carolina's public schools—or whether anything will actually change.
After all, nationally school districts were not required to follow the Obama-era guidelines, which weren't enforceable.
"While the decision on the guidance is incredibly disappointing, it doesn’t exactly change the law here," says Tara Borelli, an attorney with Lambda Legal. "Nothing about this impacts schools’ obligations to follow Title IX and the Constitution. Our firm view is that both Title IX and the Constitution require schools to respect students’ gender identity in all spaces, including restrooms and locker rooms."
But in North Carolina, these provisions are complicated by HB 2, Ames Simmons, the trans policy director of Equality NC, explains. Among other things, HB 2 requires people to use public bathrooms that correspond with the sex listed on their birth certificate, not necessarily their gender identity. That trickles down to public schools.
"There definitely is a uniform statewide policy on trans students' bathroom use in public schools in North Carolina, and that is set by HB 2," Simmons says. "HB 2 prohibits local school districts from making their own decisions about how to deal with trans students' bathroom use. All students in public schools must use restrooms that match their "biological sex" as defined under HB 2."
But whether or not individual school districts in the state are complying with HB 2 is another question.
Officials from the Wake County Public School system didn't respond to the INDY's
request for comment on their bathroom policy for transgender students Thursday. But, as The Charlotte Observer reported
this summer, compliance with the directives varies across the state. Schools in Charlotte-Mecklenburg, for instance, honor students' gender identity in bathrooms and locker rooms. In Durham County schools, transgender students are allowed to use private facilities, like staff and single-occupancy bathrooms. And in Chapel Hill-Carrboro schools, single-stall bathrooms have been converted into gender-neutral bathrooms.
"The only thing that has changed is that when school systems reach out to the Department of Education and say, ‘We now have a trans student in our public school, we’re not sure what we should do,’ the Department of Education is no longer going to tell them, ‘You should let trans students use the bathroom in accordance with their gender identity," says Simmons. "It is not as if trans students don’t have rights anymore. They still maintain the right to sue a school system if they feel that they are being discriminated against."
Indeed, yesterday's news came as several relevant lawsuits are pending before the courts. After the Obama administration's issued its guidelines, thirteen states challenged the protections, and a Texas federal judge put them on hold in August. Meanwhile, next month, the Supreme Court is scheduled to hear oral arguments in a lawsuit filed by a transgender high school student who sued his school board for preventing him from using the boys' bathroom.
And then there’s North Carolina. As a refresher, the Justice Department under Obama sued the Tar Heel State after it passed HB 2
Yesterday, state lawmakers (this time a bipartisan group) made yet another attempt at repealing HB 2. Led by Republican Chuck McGrady, the bill, which we discussed yesterday
, wasn't particularly satisfactory to a range of opponents, including Governor Roy Cooper. Representative Grier Martin, a Raleigh Democrat, blasted the bill on Twitter, saying it was "in no way, shape, or form a repeal of the discrimination of HB2."
Chris Sgro, the executive director of Equality NC, called the proposed legislation a "train wreck," adding that the sponsors "double down on discrimination and reaffirm worst parts of HB2."
And Cooper—who offered his own lackluster compromise last week to repeal HB 2
—said in a statement released Wednesday that he remained "committed to repealing HB 2" but was "concerned that this legislation as written fails the basic test of restoring our reputation, removing discrimination, and bringing jobs and sports back to North Carolina. I will keep working with the legislature.”
Meanwhile, it's not even clear if the new bill will have enough support
to advance through the House and the Senate.