Canada: Trump To Roll Back Obama-Era Protections For Transgender Students

Last Updated: March 9 2017
Article by Devry Smith Frank LLP

The Trump administration, as expected, has began rolling back protections for trans-gendered students that were created under the Obama administration.

The Obama-era protections issued back in May 2016 allowed transgender students in public schools to use the bathrooms and facilities that corresponded with their gender identity. It also allowed transgender students to participate in school athletic teams according to the gender they identify with.

The protections came in the form of "guidance" issued jointly by the Department of Justice and Department of Education. The guidance was addressed to school districts and colleges that receive federal funding and was based on the Obama administration's interpretation that Title IX—the federal law that prohibits sex discrimination in schools—includes gender identity as a basis for protection.

On February 22, the Trump administration withdrew these protections, by issuing its own guidance, without offering any replacement. The new guidance, also issued jointly by the Department of Justice and Department of Education, did not take a position on whether Title IX protects gender identity, but states that the departments are withdrawing the previously issued guidance "in order to further and more completely consider the legal issues involved".

White House Press Secretary Sean Spicer said that Trump believes that the matter should be dealt with at a state level, and not by the federal government. "I think that all you have to do is look at what the president's view has been for a long time, that this is not something the federal government should be involved in, this is a states' rights issue," Spicer said.

However, Trump and his Secretary of Education, Betsy DeVos, appear to be at odds over this issue. Trump and DeVos have both made promises to protect the LGBT community, and this decision by the Trump administration seems to fly in the face of that promise. DeVos apparently opposed the administration's new guidance—wanting the guidance to affirm that students would still be protected and that the Department of Education's Office of Civil Rights would investigate issues—but was overruled by Trump.

Advocacy groups for LGBT rights have pointed out that while the Obama administration's guidance was not legally binding, it helped school districts and publicly-funded colleges comply with the federal law. In the wake of Trump's decision, these groups note that even though the guidance has been rescinded, the underlying law of Title IX has not changed.

According to a study by the Williams Institute at the UCLA School of Law, there are about 150,000 youth between the ages of 13 and 17 in the United States that identify as transgender, and civil rights group fears that the withdrawal of these protections will endanger these students.

This new guidance follows the Department of Justice's decision to stop fighting a national injunction blocking the federal government from giving guidance to schools and transgender students. The injunction, ordered by a federal judge in August 2016, was a result of a lawsuit filed by 13 states. The matter was set to be heard by the 5th Circuit Court of Appeals on February 14, 2017, but the hearing was cancelled after the Department of Justice and the states involved jointly moved to cancel the hearing. According to the motion, "The parties are currently considering how to best proceed in this appeal."

The decision to stop fighting the injunction came one day after Jeff Session was sworn in as attorney general (who serves as the head of the Department of Justice).

While the Trump administration is taking its stance on this transgender issue, the Supreme Court of the United States is getting ready to hear arguments in its first test of Title IX as it relates to transgender students.

Gavin Grimm, a 17-year-old transgender student from rural Virginia, is fighting the Gloucester County School Board policy that prohibited him from using the boys' bathroom at his Virginia high school because his birth certificate identified him as female, enough though he identifies as male. The policy, instead, allowed him to use single-stall unisex restrooms that had recently been installed. Last April, the 4th Circuit Court of Appeals ruled in favour of Grimm, deferring to the Obama administration's interpretation of Title IX.

While Americans continue to fight over transgender rights south of the border, here in Canada, we have been far more active in taking steps to protect the trans-gendered community—locally, provincially and federally.

In 2012, the Toronto District School Board, Canada's largest school board (and the fourth largest in North America) created guidelines to accommodate students according to their own stated gender preference.

Under the TDSB guidelines, students do not need to produce official documentation to justify their identity choice—a student's self-identification is the sole measure of a student's identity. The guidelines permit students to use whichever washroom fits with their gender choice—and encourages schools to have at least one unisex stall available. The guidelines also give students the power to decide how they will be addressed in the school's correspondence with parents—and encourages school staff to discuss with students which names and pronouns they would like used in school communications.

At the provincial level, the Ontario Human Rights Code was amended back in 2012 to prohibit discrimination against people based on their "gender identity" or "gender expression". With these added grounds, the law officially protects trans-gendered people in Ontario from discrimination in employment, housing, education, healthcare, and other social areas.

In passing this amendment, Ontario became the first major jurisdiction in North America to enshrine the grounds of gender identity and gender expression into its human rights code.

At the federal level, the Liberal government recently introduced Bill C-16, which would make it illegal to discriminate on the grounds of gender identity in federally-regulated employment and services. The bill, if it becomes law, would add "gender identity or expression" to the list of prohibited grounds of discrimination in the Canadian Human Rights Act, and to the list of characteristics of identifiable groups protected from hate propaganda in the Criminal Code. Bill C-16 has already been passed by the House of Commons by a margin of 248 to 40, but still has to be passed by the Senate—where it is in its second reading.

According to an Angus Reid Institute poll, the legislation is backed by 84% of Canadians.

On the specific issue of bathroom use and trans-gendered children, nearly two-thirds of Canadians believe that children should use the bathroom that corresponds with their gender identity.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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