How a legal ruling on transgender bathroom access affects schools

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A gender-neutral bathroom is seen at the University of California, Irvine in Irvine, California September 30, 2014. The University of California will designate gender-neutral restrooms at its 10 campuses to accommodate transgender students, in a move that may be the first of its kind for a system of colleges in the United States.  REUTERS/Lucy Nicholson (UNITED STATES - Tags: EDUCATION SOCIETY POLITICS) - RTR48EXM

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JUDY WOODRUFF: The decision by a Texas judge to block the Obama administration’s rules on transgender bathrooms and locker rooms comes just as the school year is starting. And it’s coming as many school districts are trying to determine what to do now.

William Brangham has our update.

WILLIAM BRANGHAM: This ruling is the second setback in recent weeks for transgender advocates. Earlier this month, the Supreme Court said a Virginia school board could block a transgender student from using the boys bathroom while the higher court decides if it will take up these broader case.

Yesterday’s decision is the first to say that the Obama administration’s directive could be blocked nationwide. Those directives instructed school districts to allow trans students to use the bathroom of their choice. Texas is one of 13 states challenging the constitutionality of the directive.

In this case, the judge wrote that the administration had exceeded its authority under Title IX, the 1970s-era law banning sex discrimination in schools.

To help us wade through the meaning of all this, I’m joined now by Evie Blad, who is the Education Week reporter who’s been covering this story.

So, Evie, what does this ruling say, and how significant is this?

EVIE BLAD, Education Week: It’s very significant, in that it’s the first time we have heard a federal court weigh in on a nationwide basis.

There are several cases winding their way through the federal courts now, but the only one that has had a ruling so far applied only in one circuit. And it’s significant, in that the school year is about to start, and this judge is saying, nationwide, that the Obama administration’s regulations under Title IX, its civil rights guidance, doesn’t need to be implemented.

So what that means is if a school doesn’t want to create a policy allowing transgender students to use the rest room of their choice, it doesn’t have to. But if a school has a policy that it wants to have, it can keep that policy. It just doesn’t have a federal directive to do so.

WILLIAM BRANGHAM: So, Texas was one of a bunch of states that had objection to these rules. What is the essence of their objection?

EVIE BLAD: Well, there are two primary things that you will see in these lawsuits.

One is something that we’re all familiar with, which is the argument that folks are making about privacy rights of students. Does my student or my child who isn’t transgender have a right to use a restroom that doesn’t have transgender students in it?

WILLIAM BRANGHAM: Right.

EVIE BLAD: There is some discomfort because some students who have undergone gender transitions haven’t undergone sex transitions. And so there’s some discomfort there.

But the primary argument is one of legal interpretation. The question is, when the Obama administration created the civil rights guidance, did it interpret an existing regulation, which is what it argues it did, or, what the states argue that it did is that it created a new one under the guise of interpreting law.

And if it was to create a new policy, the states argue that it should have gone through the Administrative Procedures Act, and given them time to comment and weigh in on the issue.

WILLIAM BRANGHAM: So, that’s what the judge said in this case, that the way the Obama administration went about issuing the directive was what was illegal, in its view?

EVIE BLAD: Yes, he said that the states had proven that there’s merit to this case, so it’s worth hearing. So, this is a temporary delay.

So, what he’s doing is, he’s halting the directive until he has a chance to hear and weigh in on the full case. But, yes, he said his order was pretty clear that they may have violated the Administrative Procedures Act.

WILLIAM BRANGHAM: So that’s the judge’s ruling, but as we have seen with a lot of these laws around the country, some of the resistance to them comes from the belief that somehow if these laws are passed, that men, not transgender men, are going to somehow dress up as women and go into the women’s restrooms.

Is there any evidence that that kind of activity actually goes on?

EVIE BLAD: Right.

Well, and the argument at the school level is oftentimes that boys will decide one day to be one thing and another thing, that there will be some mischievousness, right?

Well, long before the federal regulations came out, or long before the Obama administration began asserting these things in courts, school districts were making these decisions on their own. So, L.A. Unified, for example, the second…

WILLIAM BRANGHAM: Los Angeles.

EVIE BLAD: Yes, the second largest district in the country, for more than a decade, has had a policy that allowed transgender students to use the restroom that aligned with their gender identity.

L.A. Unified says that they can count on one hand the numbers of times a student has had to clarify these accommodations in administrative offices. And they don’t have any documented incidents of problems, the last time I checked.

Part of the problem here is that we are talking to districts who are oftentimes defending policies they feel very strongly about. Some opponents of these policies may say, even if there aren’t these big documented problems, that they still feel that their students have some privacy interests here that need to be respected.

WILLIAM BRANGHAM: So, if I’m a transgender student and I start school tomorrow, next week, two weeks from now, what does this ruling mean for me?

EVIE BLAD: Right.

Well, if your school doesn’t have a policy that directs what restroom you’re allowed to use, you don’t have the ability to take enforcement through the Department of Education, because the judge has said you can’t enforce this directive.

Previously, a transgender student could go to the department and say: I feel like my civil rights are being violated. Right now, that has been put on hold through this order.

Transgender students say that bathrooms are not their only concern in school, sort of feeling safe and a sense of belonging, but they say that they do matter, because when a school doesn’t allow them to use the restroom of their choice or requires them to use a single stall or staff restroom, they say that it feels like the school isn’t respecting their gender transition. And that can stigmatize them or bring other school climate concerns with their classmates.

WILLIAM BRANGHAM: So, there’s a lot of different legal cases going on, in Texas, and Virginia and other places.

Is your sense, is the legal analysis here that this is ultimately going to end up at the Supreme Court?

EVIE BLAD: There’s a lot of folks in school law who felt that it was bound for that for a long time.

There is a decision in Virginia that the school court — the Supreme Court has put a temporary hold on that case. In that instance, the court of appeals sided with the Obama administration on these rules and said that it is an appropriate interpretation of Title IX.

But the Supreme Court put a temporary halt on that while it decides whether it is going to consider the issue in its next term. In that case, we could get an ultimate decision. Even if the Supreme Court decides not to take up that case, we could see differing issues — differing opinions on the circuit court level.

And in that case, a lot of times, those issues end up going to the Supreme Court for further clarity. So, chances are, it might end up there sooner or later.

WILLIAM BRANGHAM: All right, Evie Blad of Education Week, thank you very much.

EVIE BLAD: Thank you.

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