Transgender Youth Under the Trump Administration in Higher Education

November 30, 2017November 29, 2017 / Nicolette Zulli / Leave a comment

By: LeeAnne Pedrick

Trump’s election and presidency have brought about monumental changes to the nation, including the LGBTQ+ and transgender communities. What seemed like indefinite protections for this underrepresented group from the Obama administration in terms of gender expression quickly turned political under Trump’s America.

Title IX is a policy from the United States Department of Education that protects all students, regardless of sex, from discrimination under any educational program that receives federal funding. This policy expands its scope by applying to almost all schools, both private and public because almost all schools receive federal funding in some way. This was a monumental protection for all students in these programs, both secondary and post-secondary, against all sex-discrimination complaints.

After this was revised in 2015, the US Department of Education Civil Rights Division added guidance to Title IX protection written in letter format and titled “Dear Colleague” regarding protections for transgender students. This letter created guidelines to the already existing law by expanding the terminology to gender identity, rather than just sex (organs you are born with), as well as using the correct pronouns (he/him/his, she/her/hers, or they/them). Additionally, it requires these same schools under Title IX, to respect and legitimize the gender identity the student identifies with, regardless of if it matches the sex they were born with. This is important because the legal name of a student often does not align with their gender identity, making it harder for them to freely express who they are. This letter allows for students to feel comfortable and safe in their education to freely identify with who they are. The most significant protection outlined in this letter is the permission of transgender students to freely use the locker rooms, shower facilities, housing, bathrooms, sports teams, etc. that align with their gender identity rather than the sex they were born with. This letter allowed for more consistent protection for transgender students that align with the purpose of Title IX.

Trump quickly reversed the effects of “Dear Colleague” within the first few months of his presidency. In February of 2017, the Department of Education issued a response “Dear Colleague” in which it submitted regulations to completely reverse the effects of Obama’s “Dear Colleague.” This new letter alleges that the Obama Administration’s letter lacked any sort of legal analysis or evidence that it was consistently aligned with the meaning and purpose of Title IX in the first place. Trump’s letter states that this original sweeping guideline took the role of state and local governments by creating policy on a subject matter that is usually left up to lower levels of government. The combination of the lack of legal analysis and the litigation that has arisen over the first “Dear Colleague” gives reason for its rescission. However, the new “Dear Colleague” assures that there will still be protections in place for transgender students.

While neither “Dear Colleague” constitutes law, both have had significant impacts on education and protection for transgender students. After Trump’s “Dear Colleague,” schools have felt more relieved of the pressure to adhere to what might not gain the popular vote in allowing transgender students to use the bathrooms and locker rooms of their choice. Despite this setback for the federal protection of transgender individuals, fifteen states have explicit protection for transgender students and other states have legislation being created to meet the same goal.

For awhile it seemed like the Supreme Court would offer a more definitive solution. In the case of G.G. v. Gloucester County School Board, a transgender teen was using the men’s bathroom which matched his gender identity until parents complained. He was then barred from doing so. He filed suit asking for a preliminary injunction to require the school to allow him to use the correct bathroom. This case was granted writ at the Supreme Court but was never heard because of Trump’s repeal of the original “Dear Colleague.” What could have been the answer for transgender students looking for consistency under the law for proper protection against discrimination quickly was shot down with the same type of regulation offered in “Dear Colleague” under Obama.

Neither Trump nor other branches have issued any more guidelines nor has there been any federal legislation on the matter. It is likely that the future for transgender students’ protection in education will rest on state and local legislators who choose to implement more explicit policy.

Newsweek–Trump Administration Bans Memos Obama Used to Allow Transgender Students to Utilize Bathrooms of Choice–17 November 2017

POLITICO–Obama-era School Sexual Assault Policy Rescinded–22 September 2017

ACLU–G.G. v. Gloucester County School Board–6 March 2017

The Washington Post–Trump Administration Rolls Back Protections for Transgender Students–22 February 2017

United States Department of Education–Dear Colleague Letter of Transgender Students— 13 May 2016

United States Department of Education–Title IX and Sex Discrimination–April 2015

About the author:

LeeAnne Pedrick is a 2L at SUCOL. She is currently a student-attorney for the Low Income Taxpayer Clinic as well as the Treasurer for the Tax Law Society. LeeAnne hopes to be a tax attorney one day.

Uniform Law Commission Authors Update Uniform Parentage Act

November 2, 2017November 2, 2017 / Nicolette Zulli / Leave a comment

By: Joseph Railey

When a child is born to different-sex adults, we have legal ways to determine who the child’s parents are. Obviously, determining who is a child’s mother is easy, absent adoption or surrogacy she is the woman who gave birth to the child. In many cases determining a father is also easy as the law presumes that a married woman’s husband is the child’s father and if the woman is unmarried she can bring a paternity suit against a suspected “father.” In the wake of the Supreme Court’s landmark marriage equality ruling in Obergefell v. Hodges, these laws encountered a problem. Because of their gendered construction, how does the law determine who the legal parents of a child born to same-sex couples are? Following Obergefell, the Uniform Law Commission set out to answer these questions by revising the Uniform Parentage Act (UPA).

First passed in 1973, the Uniform Parentage Act seeks to create a uniform legal system for determining parent-child relationships. Prior to this year, the Act had been amended a few times, most recently in 2002. The 2017 UPA amendments create a paradigm that is constitutional in light of the Supreme Court’s decisions in Obergefell and in Pavan v. Smith earlier this year.

Among the most significant changes in the 2017 UPA is the inclusion of gender-neutral language such that the act applies equally to fathers and mothers. This is made abundantly clear in § 107 which states, “To the extent practicable, a provision of this [act] applicable to a father-child relationship applies to a mother-child relationship and a provision of this [act] applicable to a mother-child relationship applies to a father-child relationship.” Apart from this provision, many of the operative sections of the UPA are now also written gender neutral. Section 204 (which deals with the marital presumption of parentage) now refers to “an individual and the woman who gave birth to a child” rather than gendered terms like a “woman and her husband” in determining if a marital presumption applies. Similar gender-neutral language is applied throughout the revised UPA.

While these changes sound insignificant, their impact is anything but. In the wake of nationwide marriage equality, there have been a significant number of paternity and custody suits involving children of same-sex couples. Some of these cases, like McLaughlin v. Jones in Arizona, involved arguments based in large part on the gendered language in the statute. In McLaughlin, following the deterioration of her marriage with her partner, Kimberly, the birth mother of a male child, argued that her former partner had no parental rights over her child because the plain language of Arizona’s marital presumption statute referred to “paternity” and “males.” At the outset of their opinion, the Arizona Supreme Court stated that “a man is presumed to be a legal parent if his wife gives birth to a child during the marriage. We here consider whether this presumption applies to similarly situated women in same-sex marriages.” Based on Pavan and Obergefell, the Arizona court determined that the presumption applied equally to same-sex couples.

Celebrations outside the Supreme Court in Washington, D.C. after the decision of Obergefell v. Hodges. Courtesy of Church Militant.

The 2017 UPA has yet to be adopted by any state. However, the Act is significant as it furthers the best interest of children born to same-sex parents by seeking to guarantee their right to a relationship with both of their parents. While states like Arizona have reached this conclusion through the judiciary, that process is not short (McLaughlin, for example, started in 2013). The revised UPA provides a way for states to avoid lengthy and complex litigation while protecting a child’s interest in having a legal relationship with both parents.

For more information please see:

McLaughlin v. Jones, 401 P.3d 492 (Ariz. 2017).

Oberegefell v. Hodges, 135 S. Ct. 2584 (2015).

Pavan v. Smith, 137 S. Ct. 2075 (2017) (per curium).

Unif. Parentage Act (Unif. Law Comm’n 2017).

About the author:

Joe is a third-year law student at Syracuse University College of Law. He is an Executive Editor on the Syracuse Law Review and a member of the Moot Court Honor Society. Joe is interested in LGBTQ rights, civil rights litigation, and immigration law.

Sunday Funday: The Daily Show on AZ’s Anti-Gay Bill

March 2, 2014April 6, 2014 / Matthew Clemente / Leave a comment

Sunday Funday: The Daily Show on AZ’s Anti-Gay Bill

Earlier this week SLACE discussed a bill, SB 1062, passed by the Arizona Legislation that, by the end of the week, was widely viewed as being anti-gay. As of last Monday, when the SLACE post was published, the bill was awaiting enactment through the signature of Arizona Governor Jan Brewer. In the interim, a strange turn of events came to fruition. The bill was lambasted as being discriminatory, and even some of the legislatures who voted for it repudiated their votes and urged the governor to veto the bill. Gov. Brewer did eventually veto the bill. However, before tearing the bill out of the legislative history and tossing it to the trash bin of bad ideas, here is a clip from The Daily Show lampooning the failed bill and pointing out the hypocrisy that sounded it.

This post was originally published on the SLACE Archive. For more public policy related video/audio, be sure to check out the SLACE Archive for daily podcast recommendations.