Trump Administration’s Reversal of Transgender Student Protections and Higher Education’s Response

In February 2017, the Trump administration rescinded 2016 guidelines from the Obama administration regarding transgender students’ rights to access facilities, including locker rooms and bathrooms.

In the June 2016 “Dear Colleague” letter (DCL), the Obama administration guided educational institutions to allow transgender students to use restrooms and locker rooms that match the gender with which the students identify. 

The February 22 DCL does not establish new guidelines for institutions.  Rather, it indicates that the previous guidance has been rescinded in order to allow further consideration of all the legal issues involved stating that the previous letter did not undergo any formal public process for consideration and does not contain “extensive legal analysis or explain how the position is consistent with the express language of Title IX.”  The letter goes on to state that states and local school districts must maintain primary responsibility for establishing educational policy.

Within the last several years, a nationwide debate has emerged regarding this issue, resulting in court actions in many states.  In March 2016, North Carolina passed a law that requires transgender individuals to use bathrooms in government buildings that correspond with their birth sex, as identified on their birth certificate.  (The Obama administration brought a lawsuit to block this state rule, alleging that it violated federal law.)  On March 28, the US Supreme Court is set to hear oral arguments in the case of a transgender teen who has sued his school board in Virginia for his right to access the boys’ bathroom.  At this point, 14 states have filed legislation dubbed as “bathroom bills.”  (For an in-depth analysis of current legislation, look for our upcoming NASPA Research and Policy Institute blogpost “State Legislative Analysis: Bathroom Bills.")

However, during this period of national discussion, higher education institutions developed—and, in some cases, expanded—an array of resources to support transgender students and the LGBTQIA community, ranging from adding references to gender identity in non-discrimination policies, to developing gender-neutral bathrooms and residential communities, to covering medical treatments and services for transgender students.

NASPA and other higher education advocacy groups were quick to respond to the Trump administration’s decision.  NASPA President Kevin Kruger argues that the latest action has moved the field of education in the “wrong direction with respect to the goals of inclusivity and civility” and may place transgender students at safety risks by requiring them to use facilities that don’t match their gender identity.  A joint statement by the Leadership Conference on Civil and Human Rights, the National Women’s Law Center, NAACP Legal Defense and Educational Fund, the American Civil Liberties Union, and other organizations condemns the decision to retract the original guidance, stating that the Department of Education “has an obligation to ensure that all students have equal educational opportunities, a mandate that applies regardless of a student’s gender identity.”  With this latest DCL, the groups argue the Trump administration has sent a “deeply troubling message” that the administration will not support students’ civil rights and they encourage individual schools and districts to engage in their own efforts to treat students in a manner consistent with their gender identity.

Many colleges and universities around the country appear to have taken this counsel already—and have developed public statements indicating that they will continue to recognize their students by the gender with which they identify.  University of Virginia leaders released a statement that “UVA is not changing its policy and will continue to include gender identity and sexual orientation in its non-discrimination policy.”  Wake Forest University also issued a statement indicating the latest DCL “does nothing to change our steadfast commitment to helping create a safe and supportive educational and work environment for trans students and colleagues.”  The University of California system and Florida State University have published similar statements within the last week.

The Trump administration’s decision not to provide alternative guidance while rescinding the previous DCL leaves an open question regarding future federal direction in this area—or whether states will be permitted to develop a patchwork approach regarding legal rights for transgender individuals.  For her part, new Department of Education Secretary Betsy DeVos issued a statement immediately following the release of the February 2017 DCL, stating that she remains “committed to investigating all claims of discrimination, bullying, and harassment against those who are most vulnerable in our schools,” and that she considers “protecting all students, including LGBTQ students” a top priority for the department. 

NASPA will continue its partnership with higher education institutions and policymakers through developing research and dialogue regarding how best to support the needs of our transgender students and colleagues.  Earlier this month, the NASPA Research and Policy Institute launched a survey designed to assess the ways in which schools are extending resources to transgender individuals.  Findings from this trans-inclusiveness survey will be shared at the national conference in San Antonio in March and will help shape the association’s advocacy at both the state and national levels.  For more information, contact NASPA Director for Equity, Inclusion, and Violence Prevention Jill Dunlap: jdunlap@naspa.org.