Skip to main content

In Transgender Restroom Fight, Trump’s DOJ Sides With Bathroom Bigots


Well, we all knew there was no way the Trump administration was going to just forget about trans people. For all the hate falling on Muslims, the executive branch did reserve a share for the transgender community. We haven’t heard much about transgenders and bathrooms over the last few months, likely because the lawsuits have been filed, the cases are pending, and those of us not directly affected are going on our merry way shopping at Target and waiting for the day when the world rights itself again. But the Trump administration just reminded us that they’re here, they fear, and we should already be used to it.

A quick recap on the legal fight for transgender rights:

Over the past few years, trangenderism became a thing in the news. Sidebar: before then, transgenderism was still a thing, but without reality shows and constant media coverage, it wasn’t something we debated about at Thanksgiving. As more trans students became comfortable speaking up, serious questions arose about the proper treatment of this group of people who have a unique set of needs. The most prevalent question was how public schools should handle transgender students’ right to use gender-specific spaces (such as group bathrooms and locker rooms). The question wasn’t an easy one to answer, even for those committed to protecting the rights and safety of transgenders. And in that small space of uncertainty, politically-opportunistic social conservatives shoved a seed of propaganda that blossomed into an enormous forest of intolerance. I’ve written at length about the ways in which trans bathroom use is absurdly used as a “child protective issue.”

On May 13, 2016, the Department of Education issued a “Dear Colleague Letter” (“DCL”), which set out the Obama administration’s directive to schools with regard to the treatment of transgender students.

The letter explained that Title IX (part of the Federal Civil Rights Act) obligates any school receiving federal funding as follows:

“As a condition of receiving Federal funds, a school agrees that it will not exclude, separate, deny benefits to, or otherwise treat differently on the basis of sex any person in its educational programs or activities unless expressly authorized to do so under Title IX or its implementing purposes of Title IX and its implementing regulations. This means that a school must not treat a transgender student differently from the way it treats other students of the same gender identity.”

The DCL went on to clarify:

“Under Title IX, there is no medical diagnosis or treatment requirement that students must meet as a prerequisite to being treated consistent with their gender identity.”

In other words, the transgenderism is real, and a student’s “gender identity” is his or her “gender” for purposes of how a school is to treat that student.

On the issue of locker rooms and bathrooms, the DCL spelled it out for the schools. If the school has “girls” or “boys” rooms, transgender students get to use the one that correspond with their gender identities. If the school has an individual-user bathroom, the transgender students are welcome to use that too—but they cannot be forced to use it unless that’s the rule for all students. In other words, transgender students are people, and schools should just treat them like people.

Thirteen states hell-bent on forcing trans students to use bathrooms corresponding to their “birth gender” sued the Obama administration, complaining that the DCL actually violated the Title IX rights of the non-trans students. Clever use of “it’s not you, it’s me,” right? A Texas federal judge agreed, and last August, issued a nationwide injunction on the DCL; since then, schools have been free to disregard the DCL’s guidance on trans issues if they so choose. Moving along in tandem with that lawsuit is the case of Gavin Grimm, a 17 year-old transgender boy in rural Virginia who sued his local school district for violating his civil rights when it required him to use the girls’ bathroom. That case is up at SCOTUS, and briefs are being exchanged.

Even though we now have a new president, that lawsuit filed by 13 transphobic states against the federal government is still proceeding. When the new administration inherited the litigation, it was faced with the decision of whether to more forward in the fight to uphold the DCL’s directives. On Friday, the Trump DOJ filed a notice of withdrawal of a motion in that fight, along with a notice of motion to cancel the oral arguments that had been scheduled for February 14.   The notice of motion doesn’t spell out Trump’s position on all things transgender—but it sure is foreshadowing the intolerance to come.

For those new to “the trans issue,” you may want to check out the Oscar nominee for Best Picture, Hidden Figures. Nestled in the inspiring true tale of three black female NASA engineers is a the shameful story of how segregated bathrooms were used to perpetuate bigotry in the name of “public safety.” Audible gasps were heard in theaters across the country when sickening racism played out on the big screen; group cheers erupted when Costner’s character destroyed a “Colored Ladies Room” sign and declared: “No more colored restrooms. No more white restrooms…. Here at NASA, we all pee the same color.” Heads up: the Obama administration is Kevin Costner, Gavin Grimm is Taraji P. Henson, and the Trump Administration is all the awful people who stood by while their coworkers were demeaned and exiled. Half a century later, we all see that segregated bathrooms in the name of “safety” were ridiculous and offensive. Things move a little faster these days, so it likely won’t be quite as long before the same is realized about the transgender bathroom “controversy.”  Unfortunately, it appears from the latest DOJ filing that even our collective study of history hasn’t saved us from repeating it in this instance.



This is an opinion piece. The views expressed in this article are those of just the author.

Filed Under:

Follow Law&Crime:

Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos