School bathroom rules unclear after Trump directive

Michael Gerstein
The Detroit News

Lansing — Transgender guidelines for Michigan’s public schools could eventually be affected after President Donald Trump scrapped federal guidelines instructing schools to allow transgender students to use bathrooms that match their gender identity.

The state’s voluntary bathroom guidelines encouraging schools to let students use the bathrooms of their choice initially are not affected by the latest federal directive, according to the Michigan Department of Education. But the long-term legal implications from the federal rules being revoked are murkier, say legal experts who support transgender rights.

The issue may ultimately be decided by the U.S. Supreme Court after attorneys who sued a Virginia school board stopping a transgender student from using the boys’ restroom vowed Thursday to take the case to the nation’s highest court. The Supreme Court has asked both parties to submit letters about how the case will proceed, according to the Washington Post.

“If they choose not to address this issue, we won’t have finality on this issue, no,” said Jay Kaplan, a lawyer specializing in lesbian, gay, bisexual and transgender issues with the American Civil Liberties Union.

In the meantime, Kaplan said the directive is causing more confusion for school districts unsure of their legal obligations and sends a clear message to transgender students that the Trump administration is not on their side.

“It certainly has a strong immediate impact of sending a signal that this administration is not in support of LGBT rights,” said Stephanie White, executive director of Equality Michigan. White supported the federal and state guidelines on how schools should accommodate transgender students who wish to use a bathroom that matches their gender identity.

White said the Trump administration’s decision to rescind those guidelines put in place by former President Barack Obama’s administration “sets the tone for other people to follow suit.”

Education Secretary Betsy DeVos defended the Trump adminsitration’s policy Thursday at the Conservative Political Action Conference.

“This issue was a very huge example of the Obama administration’s overreach to suggest a one-size-fits-all, federal government, top-down approach to issues that are best dealt with and solved at a personal level, at a local level,” DeVos said in response to a question from a moderator.

“I have made clear from the moment I’ve been in this job that it’s our job to protect students and to do that to the fullest extent that we can. And also to provide students, parents and teachers with more flexibility with how education is delivered and how education is experienced, and to protect and preserve personal freedoms.”

DeVos did not address reports that she initially opposed the change over concerns for how it could harm transgender students. The New York Times reported that she dropped her initial objections after Trump sided with Attorney General Jeff Sessions.

Michigan Attorney General Bill Schuette deferred to the Michigan Department of Education on Title IX issues, but indicated local officials and parents should have the primary say in policy.

“Attorney General Bill Schuette believes that each and every student must be provided with dignity, grace, privacy and safety in schools,” spokeswoman Andreas Bitely said Friday. “These decisions must and should be made with parents and local school boards in the states of our nation.”

Obama’s administration reinterpreted a section of federal law protecting against sexual discrimination to include transgender students and directed schools to allow such students to use whatever bathrooms they choose or risk running afoul of the law.

That law — Title IX — is still in effect, but Trump’s administration has signaled it does not think the law protects transgender students in that way, and the issue has to play out in the courts, White said.

“Without that clarity, now it’s going to be left back to schools and individuals to try to interpret it themselves. And some of them will do it well and some of them won’t,” she said.

Kaplan said other federal lawsuits have set a precedent suggesting that federal sex discrimination law protects transgender students and allows them to use the bathroom of their choice.

But Republican State Board of Education member Tom McMillin, a former lawmaker from Rochester Hills who opposes rules allowing transgender students to use bathrooms conforming with their gender identity, said he doesn’t believe Title IX extends to transgender students.

“Obviously, there’s no law that says sex includes sexual orientation,” McMillin said.

He said the latest directive from the Trump administration “can provide some comfort to districts” that they might not lose federal money for not allowing transgender students to use bathrooms that conform with their gender identity.

Former State Board of Education President John Austin, a staunch supporter of the federal guidelines and who helped enact Michigan’s guidelines, said he thinks federal law still clearly protects transgender students.

“It’s a political loser,” he said. “It’s bad for business, and it’s bad for the economy.”

McMillin is trying to repeal the state board’s voluntary LGBT guidelines approved last year. Those guidelines were voluntary for schools, but he argues they are harmful to students, parents and schools.

McMillin railed against the state’s guidelines during his campaign for State Board of Education. The State Board of Education is split with four Republicans and four Democrats.

“I think they’re harmful,” he said. “I think they undermine parents’ authority. I think they create a hostile environment for students.”

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Twitter: @MikeGerstein