According to sources close to the president, Education Secretary Betsy DeVos disagreed with Attorney General Jeff Sessions about a set of directives issued by the Obama Justice and Education departments that required schools to allow transgender students to use bathrooms according to their gender identity, even if it differed from their biological sex, the New York Times reports.
While the rules affect very few students in any given school, Ms DeVos told President Donald Trump that she was uncomfortable with his executive order to rescind them. She at first didn’t want to sign off on the executive order, even though the order needs to come from both the Education and Justice departments. (The original guidance in a Dear Colleague letter came from both federal departments.)
Mr Sessions, however, opposes the expansion of gay, lesbian, and transgender rights, and Mr Trump is on his side in this debate for somewhat different reasons: he thinks the transgender question has no place at the federal level.
Ms DeVos could have resigned instead of following the president’s wishes to sign off on the order, but that didn’t happen, and she reluctantly dropped her objections. Mr Trump then issued his executive order to rescind the rules this evening, the Washington Post reports.
In the end, Ms DeVos insisted only that the executive order include language that requires schools to continue to protect LGBT students from bullying and other abuses.
“Let me say I fully embrace equality, and I believe in the innate value of every single human being, and that all students, no matter their age, should be able to attend a school and feel safe and be free of discrimination,” she said at her confirmation hearing.
A case on transgender bathroom use is scheduled to be argued before the Supreme Court next month, but now that the directive has been rescinded, part of the argument in that case would appear to be moot. If the directive is rescinded, there’s no point in arguing about whether the federal government had the authority to issue it in the first place. (The remedy if the Court found that the Obama administration was wrong to issue the directive would have been to enjoin the government from enforcing it, which Mr Trump just did by executive order.)
Nothing about this order probably makes the president happier than the fact that it means he likely won’t have to defend one of Mr Obama’s directives that (a) he thought shouldn’t have been issued and (b) supports transgender rights.
There are, in my opinion, battles for the schools that would be worth sacrificing a job over; the “bathroom issue” isn’t one of them. We cannot, at the federal level, put the rights of some people over the rights of others. While transgender students say the correct bathroom use is essential for their “health and psychological well-being,” opponents say allowing transgender students to use the bathroom according to their gender identity violates other students’ privacy.
Besides, this question before the Supreme Court doesn’t seem to be about discrimination; rather, it seems to be about interpreting the word “sex” in the strict wording of the law. What we actually need is a brand new law, written without ambiguity, to clear up exactly what Congress meant by discrimination in Title IX. If they meant to include gender identity, they should not have used the word “sex,” which has a definite meaning in terms of science—it’s determined by a person’s chromosomes in the world of science. In the world of civil rights, well, that should be up to the Supreme Court unless Congress fixes it first.