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Former DOJ Official On The Future Of Transgender Student Policies


Federal law prohibits sex discrimination in public schools. Last year, the Obama administration interpreted that to mean transgender students should be allowed to use the bathroom or locker room of the gender that they identify with, and they put out federal guidance to schools to reflect that. Many conservatives saw it as federal overreach. And yesterday, the Trump administration rescinded that legal guidance. Here's White House Press Secretary Sean Spicer.


SEAN SPICER: The president's made it clear throughout the campaign that he's a firm believer in states' rights and that certain issues like this are not best dealt with at the federal level.

MARTIN: With us in the studio to talk about this is Vanita Gupta. She was the acting head of the Civil Rights Division in the Obama Justice Department and one of the architects of the Obama policy on transgender student rights. Thanks so much for coming in this morning.

VANITA GUPTA: Thank you.

MARTIN: The guidance you issued to schools last year was almost immediately blocked by a federal judge in Texas. So what is the real impact of rescinding this directive now?

GUPTA: Well, I think it's important to say that the administration has retracted the guidance but cannot change the law. The issue is before the United States Supreme Court now, but there are many courts that have actually addressed this issue that did find that Title IX covers transgender students. And the Supreme Court itself has indicated in prior decisions that sex discrimination can include discrimination because of sex stereotypes and other aspects of gender. And that is why we found that transgender students are protected by Title IX.

MARTIN: So if Title IX protected them, why wasn't that sufficient? Why did you feel compelled to issue the federal guidance in the first place?

GUPTA: You know, there are a lot of federal laws that don't address every situation that comes up where discrimination can occur, and so federal agencies routinely put out guidance. And in this situation, we were putting out guidance at the request of many, many parents, administrators. We got requests from school associations, like the American Association of Secondary School Principals and the like, teachers who were asking for clarification about what the law requires. We met with parents of transgender children who had killed themselves and who had been relentlessly bullied and harassed and harmed in school. And it was incumbent on us to do what we routinely do in those situations, which is to provide guidance for schools and parents who are requiring it.

MARTIN: The Supreme Court is scheduled to hear a case next month on this subject, whether transgender students are covered by Title IX, which is, we should say, the federal law prohibiting sex discrimination in schools. What happens to that case at this point now that the Trump administration has rescinded this guidance?

GUPTA: Well, that case will go on. There were two questions that the Supreme Court took in that case - one was a procedural question about whether courts should defer to the Department of Education's and Justice Department's interpretation of Title IX. It's possible that the United States Supreme Court will decide that that is now a moot question. But the second question, I think, is kind of where the heart of this whole matter is, which is what is the meaning of Title IX itself and whether Title IX should protect transgender students. And that issue is a very much alive issue before the court now.

MARTIN: Yesterday, the new secretary of education, Betsy DeVos, put out a statement. And in it, she said the department remains committed to investigating claims of discrimination, bullying and harassment in schools. Protecting vulnerable students, she said, is, quote, "not merely a federal mandate but a moral obligation." DeVos reportedly resisted signing off on this decision to roll back the guidance. What's your read on what's happening within the administration right now?

GUPTA: Look, I think that it is very interesting that the - that DeVos said all of those things. It is hard to square away that language with the move to retract this guidance because, you know, in a lot of ways, the administration is using kind of a justification that's cloaked in these process arguments and federalism arguments. But yet, in a few days, the United States is going to have to enunciate its own position in the G.G. case that's before the United States Supreme Court. And all of the signs are suggesting that it just doesn't agree that Title IX protects transgender students. And so we'll see how that - what they say in court is going to square away with what Betsy DeVos has said about the need, the moral and legal obligation, to protect transgender students. I am heartened by that statement, but I am really deeply concerned that the administration is actually, in effect, signaling kind of a green light to not accommodate and protect transgender students, who are some of the most vulnerable students in our midst, in the course of retracting this guidance.

And I will just say, you know, there's a lot of talk about the states' rights issue and that this should be left to states and locals. And look, the law prohibiting sex discrimination in education, just like the law that prohibits race discrimination in education, isn't left to the states in our Constitution. Equal protection is federally guaranteed in this country, in every state, in every school. And while today's retraction doesn't change the law, it does evince a disregard on the part of this administration for the rights of LGBT children to attend school free from discrimination. And I think that that is what is so hard to square with Betsy DeVos' statement.

MARTIN: At the same time, you know, when this guidance came down, there were these charges of federal overreach and especially conservatives saying this is a moral issue and this is now the federal government telling me how to understand an issue that I think of in religious terms. And following the election, we'd hear the argument that this action alienated some moderates who otherwise supported the Democrat's platform. When you think back on this, do you think it could have been handled differently?

GUPTA: You know, there were - at the time that we issued the guidance, because we had received so - an overwhelming number of requests from school administrators and the like, it would have been irresponsible for us to have left school administrators without the guidance. The guidance, though, I need to remind folks, didn't create law. The guidance simply enunciated the Justice Department's interpretation of Title IX and what federal civil rights law requires of schools. It was based on a decade of case law. It was based on proven best practices that frankly a lot of schools around the country were already implementing at the time that we issued the guidance.

I think for a lot of schools and communities, they aren't - they weren't looking to the Justice Department or waiting for the Justice Department to figure this out. They did feel a moral obligation to ensure that all children in this country are able to attend school free from discrimination, harassment and bullying. And that is what animated all of this.

MARTIN: Vanita Gupta was acting head of the Obama Justice Department's Civil Rights Division. Thanks so much for coming in this morning.

GUPTA: Thank you.

(SOUNDBITE OF EVIL NEEDLE'S "CONSCIOUSNESS") Transcript provided by NPR, Copyright NPR.

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