We’ve seen an unprecedented number of anti-trans bills in state legislatures across the country so far this year. Last week, the governor of South Dakota vetoed a particularly cruel and discriminatory bill that would have prevented transgender students in the state from using restrooms that match their gender identity and subject everyone to invasive scrutiny and invasion of privacy.
This was the first time a bill like this passed a state legislature and made it to a governor’s desk. While we celebrate the veto of this terrible bill, we are also mindful of the fact that a number of other states are considering similar discriminatory measures that would expose transgender students to unequal treatment.
The first priority must rightly remain on stopping other awful attacks like HB 1008 in South Dakota. We must, however, also ask what steps can be taken to protect transgender students and ensure their equal treatment and dignity in our nation’s schools.
The federal government — at the direction of President Obama — has been a powerful ally for transgender people. The Department of Education has made clear that the federal law that prohibits sex discrimination in education (Title IX) also prohibits discrimination based on gender identity and protects the right of transgender students to use restrooms consistent with their gender identity. In addition, the Department of Education and Justice Department stood with the ACLU in court in arguing that our transgender client Gavin Grimm, who was barred from using the same restrooms as other boys at his Virginia high school consistent with his gender identity, must be treated like any other boy in accessing the restroom.
Without question, each of these actions is important and noteworthy for the commitment they show to transgender equality. As we continue to fight in court and in legislatures to ensure that transgender students are able to access restrooms and locker rooms consistent with who they are, the federal government can do more to ensure that schools comply with their legal obligations to these students.
While the Department of Education has already stated in amicus briefs and enforcement proceedings that Title IX prohibits gender identity-based discrimination (and have acted on behalf of a number of transgender students), the department has yet to publish comprehensive and easily accessible guidance on the federal law and what it requires of schools with respect to the treatment of transgender students.
Comprehensive guidance plays an important role in ensuring that transgender students are treated consistent with what federal law requires. This should include everything from guidance on appropriate pronoun usage to access to sex-segregated spaces like restrooms and locker rooms that are consistent with the student’s gender identity. This kind of guidance would provide transgender students and their families with a powerful tool to ensure their equal treatment and dignity.
As we continue to fight anti-trans legislative attacks and push for the passage of affirmative LGBT nondiscrimination protections, it is important that the federal government continue to do all that it can to ensure that transgender students are protected against discrimination at school. Publishing comprehensive guidance on Title IX and what it means for transgender students (and what it already requires of schools) is more important than ever.