Woman behind Obama-era protections for trans students speaks out against Trump

Woman behind Obama-era protections for trans students speaks out against Trump

Catherine Lhamon knows first-hand how President Donald Trump's new transgender policy for public-school students will impact trans kids.

"I was horrified and devastated that the Trump administration rescinded guidance that is critical for ensuring safety for students," Lhamon said in an interview. "It sends a terrible message to students."

Lhamon, a former ACLU lawyer and now the chair of the U.S. Commission on Civil Rights, served as the Assistant Secretary of Civil Rights at the Department of Education under President Barack Obama. In that role, she co-authored the Obama administration's 2011 "Dear Colleague" letter, which instructed all of America's approximately 100,000 public schools to permit trans students to use the bathroom that matches their gender identity.

The Trump administration's decision to reverse that policy, which came in late February, has been slammed by prominent LGBTQ activists, including Laverne Cox and Caitlyn Jenner. Lhamon is also outraged. In an interview with Mic, she described why she believes Trump's policy is harmful to students and outlined how she'd like to see Americans respond.

The following interview has been edited for length and clarity.

Mic: What was your initial response when President Trump's policy for transgender students was announced? Why is this issue so personal for you?

Catherine Lhamon: I was horrified and devastated that the Trump administration rescinded guidance that is critical for ensuring safety for students. It sends a terrible message to students. It sends a terrible message to schools. It creates confusion where none existed before.

The issue is important to me for many reasons: First, Congress promised that we would enjoy nondiscrimination in schools 45 years ago. It's time to live that promise for students. Second, I've met [trans] students who talk about the harm they have experienced in school. I know that I would not want either of my two daughters to experience that.

Were you surprised that President Trump did this as quickly as he did?

CL: Surprise is not the right word. I was so, so sorry. Every day, I hope that the core principles that I believe in — the principles that are the foundation of our democracy — will continue to be upheld. Every time I see those principles being chipped away, I'm devastated.

But was the Obama administration's transgender policy on shaky legal ground to begin with?

CL: Those concerns don't bear any relation to reality. We spent months researching the law and hearing from educators, families, school boards and districts and administrators on all sides of this issue. The ground that we stood on could not have been firmer. 

The Department of Education is charged with enforcing the law that Congress passed in 1972, which said that no person shall be subject to discrimination on the basis of sex in school. Transgender students are protected by that law just like any other student. That's not open for debate.

But isn't there a difference between sex and gender? Does the law protect stereotypes on the basis of gender as well?

CL: That's what [critics argue], but it's still not an open question. The Supreme Court in 1989, in Waterhouse v. Hopkins, said Congress intended to strike the disparate treatment of men and women based on sex stereotypes. That case used sex and gender interchangeably throughout the opinion. It couldn't be clearer that the prohibition on sex discrimination extends to the way that somebody appears to somebody else, as well as stereotypes about how that person actually behaves or doesn't behave.

What does President Trump's order actually mean at the state level? What happens in the months ahead?

CL: What the Trump administration did was send a "Dear Colleague" letter that withdraws previous guidance. [The letter] says that students should not be discriminated against, but neither the DOJ nor the Department of Education will rely on the previous guidelines. That means nobody knows how the DOJ or Department of Education would respond if people bring claims of discrimination related to transgender students. Schools also don't know how the DOJ or Department of Education guidance applies the law to them, so there is a lot of confusion. The [Trump administration's policy] doesn't help people answer questions that students experience every day in school, such as which bathroom to attend, what pronoun is appropriate to use for certain students and how to protect students' privacy rights.

Going forward, there's a Supreme Court case pending, Gloucester County School Board v. G.G. The Court has asked for additional briefings next week related to what this order means for the case. We'll wait and see what the Court finds. There are also other cases pending in multiple states around the country.

What do you want to see Americans do in response to this policy?

CL: I'm grateful to see many school districts' leadership on this and administrators saying they will continue to treat all of their students equally and protect all of their students. I'm also grateful to see many people who have stood up and said, "We will stand for these kids like we would stand for all kids." My hope is that even though [we don't have a] federal partner in nondiscrimination at the Department of Justice and the Department of Education, state and local partners will do the right thing.

More broadly, what has been most worrisome when it comes to the Trump's administration's handling of civil rights issues?

CL: Every time we harm someone, that is worrisome for me. These executive orders take us back to a 75-year-old scary history that began with the executive order allowing Japanese internment. I am just as worried about the federal government not enforcing civil rights for transgender students as I am when I see the government saying it needs more time to see what it should be doing about a voter ID law in Texas. Every single right that we lose federal protection for means each of us needs to be more afraid about whether our government will be there for us.