ATLANTA, Ga – President Donald Trump’s recent implication that he may dial back federal protection for transgender students has many LGBTQ community members fearful.
But an Atlanta-based attorney says the issue is more complex than what is being portrayed.
“All the Trump Department of Education has said is that it doesn’t interpret the specific law as did the Obama administration,” said Simon Bloom with Bloom Sugarman. “A new opinion by the administration hasn’t been issued, but if that happens, it’s certain to wind up in court.”
Last week, the Trump administration issued new guidance regarding the rule, saying that the departments of Justice and Education are "withdrawing the statements of policy and guidance" issued by the Obama administration.
The big picture around the issue revolves around Title IX and one of its regulations, Bloom says.
“Title IX was passed in the 1970s, and it says you cannot discriminate between males and females in the context of public schools,” Bloom, who has sat on the board of the Atlanta Boys & Girls Club of metro Atlanta for decades, says. “The U.S. Department of Education then followed with regulation CFR 106.33, which said that, for the purposes of restrooms, you must provide an equal number for both sexes.”
In 2015, the Obama education department issued an opinion that said it interprets that regulation to require transgender children be allowed to use the restroom that corresponds to their gender identity, not their biological one.
“The 4th circuit court of appeals then ruled that schools cannot prevent a transgender child from going into the bathroom of their gender identity, and that Obama opinion letter should be deferred to,” Bloom says. “That distinction is very important.
“As of now, the Trump administration has not issued a new opinion letter on these regulations, and until it does, the Obama opinion letter is still the law of the land.”
If the Trump administration does issue such an opinion, Bloom says it’s inevitable it will wind up in court.
“The courts will have a real challenge at that point,” Bloom says. It will doubtless be a federal court case and you’d like to think politics plays less of a role, but we’re not that naïve,” adding that the 4th circuit court covers Virginia and North and South Carolina.
Bloom also speculates that new Education Secretary Betsy DeVos was not on board with Trump’s recent statements on possibly reversing Obama’s policy.
“According to some GOP insiders in the administration and on Capitol Hill, she was strongly encouraged to sign on,” Bloom says. “The word is that she’s strongly supportive of the LGBTQ community.
“Nonetheless, this is just another example of an administration putting up a banner on an issue that is not even among the 10 most important issues facing the country.”
