The following op-ed is cross-posted from the Washington Post
By Arne Duncan and Catherine Lhamon
This week’s decision by the Trump administration to withdraw guidance to school communities about how to protect transgender students reflects a fundamental misunderstanding of the federal role in protecting the civil rights of students. Worse yet, it confuses states and school districts, and puts real, live children at greater risk of harm.
In the 1972 law commonly known as Title IX, Congress said that educational institutions that receive federal funds may not discriminate on the basis of sex, and authorized the Justice and Education departments to enforce those rights. It is categorically false for the Trump administration to say that guidance developed by the Obama administration was devised without “due regard for the primary role of the states and local school districts in establishing education policy.”
Before the guidance was issued in May of last year, we listened to transgender and non-transgender students. We listened to educators, parents, advocacy groups, school boards and administrators. We researched the law and the state of medical guidance. We reviewed the many, varied ways that school districts and colleges and universities address issues affecting transgender students.
We heard from moms such as Katharine Prescott in San Diego about the pain of losing her transgender son to suicide after he was bullied in school. We heard from transgender students about the pain of not being called by their names, and of having to answer intrusive questions at school about their anatomies.
We heard questions about safety in locker rooms and participation on sports teams. We heard from administrators about the difficult choices they had to make about when to recognize a student in transition and how to protect all students’ privacy. We heard from school districts and boards about how to advise their members and the various choices they face.
Having listened, the departments shared guidance about how to satisfy the federal nondiscrimination mandate. Students, and their teachers, deserve no less. They face daily choices — which bathroom line to stand in, what name or pronoun to use, whether to share information with a class, among so many more. They need answers, right now, so students — all students — can enjoy their right to nondiscrimination.
Students required to attend school every day need to know that they are safe, welcome and respected as learners. Educators and administrators need concrete information about how to safeguard their federal civil rights. Withdrawing guidance, offering no information instead, and noting that the federal government wants to “more completely consider the legal issues” is a dangerous default to “local control” politics instead of honoring the letter and the spirit of the law.
Leaving these questions to states means some students in some schools will have less protection than students in other schools. What will happen when a transgender student transfers? This decision is thoughtless, cruel and sad and was implemented without serious consideration for the students it affects.
While some states and districts will independently choose to protect transgender rights, Congress was crystal clear that this was a federal responsibility when it enacted Title IX 45 years ago. The law says that “no person” shall be subjected to sex discrimination at school. Unless the Trump administration is arguing that transgender students are not people, it must extend these basic protections to all students.
News reports suggest that Education Secretary Betsy DeVos initially refused to join Attorney General Jeff Sessions in withdrawing the guidance but ultimately backed down when faced with the alternative of resignation. If that is true, we give her some credit for trying, but this offers no comfort to a nation increasingly divided by background, race and income.
If DeVos can’t win on this issue, what would happen if the law-abiding children of undocumented parents, kids who have spent most of their lives in the United States, were deported like common criminals? Would she win if federal education funds targeted to low-income children were instead spent on higher-income children?
Would she win if students with disabilities were illegally denied the educational supports they need and deserve? Would she win if students of color continued to be suspended and expelled far out of proportion to their numbers? Would she block schools from discriminating in other nefarious ways?
On issues such as standards and curriculum, the federal government rightly defers to states and districts, but when it comes to protecting students, the law is clear: Civil rights are paramount. These are real issues affecting real people and carrying consequences every day for children in classrooms.
They deserve better.
Arne Duncan was U.S. education secretary from 2009 to 2015. Catherine Lhamon, assistant education secretary for civil rights from 2013 until January, is chair of the U.S. Commission on Civil Rights.