Last week, the Trump administration rescinded the Obama-era directive on the way in which schools and colleges ought to accommodate transgender students, while instructing those institutions to continue to “protect all students and to encourage civility in our classrooms.”
The ensuing media coverage was enough to make even a Trump skeptic think the president has a point when bashing “fake news.” If one read the nation’s major papers over the next few days, Trump came across as an insensitive monster, bent on stripping legal protections from vulnerable students.
In its hysteria, the media coverage was remarkably light on context, explanation, and truth.
Here’s what really happened. The Trump administration reversed an Obama-era attempt to rewrite the plain meaning of federal law in order to impose a radical and intrusive litany of practices governing dormitories, locker rooms, and sports teams. If Obama’s goal had simply been to ensure that schools find ways to make appropriate accommodations for transgender students, there would be no big issue. But instead, Obama opted to open a new front in the culture war.
There are at least three big problems with the coverage of Trump’s executive order.
First, the media uniformly ignored just how radical and dogmatic the Obama guidance was. There are complex questions here, but ones for which Obama’s ideological lawyers had no patience. For instance, the Obama guidance stipulated that:
Transgender students had the right to access bathrooms and locker rooms, live in single-sex housing, and participate on athletic teams that correspond with their chosen gender identity.
Schools were allowed to offer private changing areas upon request, but transgender students could not be required to use them. In other words, even if private changing rooms or bathrooms were made available, students had a right to use whatever bathrooms and locker rooms they preferred.
Colleges were to allow transgender students to live in housing consistent with their gender identity and could not require them to live in single-occupancy rooms.
When a student informed his school that he was transgender, schools were prohibited from requiring him to produce a birth certificate or a medical diagnosis.
This was a radical set of directives. Simply offering a student a key to the faculty bathroom was unacceptable if the student wanted to use the group facilities. Allowing a biologically male college freshman to inhabit a single in a women’s dorm was unacceptable if the student wished to live in a double. Notably, the letters and columns condemning Trump’s order protested that it had been easy for this or that school to accommodate a transgender student with a private bathroom—giving the distinct impression that letter-writers and journalists alike didn’t realize that such a “win-win” solution would in fact be unacceptable under Obama’s guidance but wholly consistent with Trump’s.
Second, media coverage ignored that Obama’s directive had, to put it charitably, a remarkably tenuous grounding in law. Obama’s missive required his lawyers to unilaterally reinterpret federal law. In their 2016 “Dear Colleague” letter, Obama’s Justice and Education Departments informed schools that the anti-discrimination protections in Title IX of the Education Amendments of 1972 had suddenly been discovered to encompass “gender identity” rather than simply “sex.”
This was remarkable, given that no federal official had ever before imagined that Title IX somehow was intended to apply to gender identity in addition to biological sex. As one of us wrote in NRO at the time, “For federal civil-rights purposes, a student’s gender identity is now his or her sex. Henceforth, in other words, a student’s sex is whatever the student says it is.” If the Obama administration wanted to revise or expand the 1972 law accordingly, it needed only to convince Congress to go along. Obama instead bypassed Congress, and the Trump administration reacted accordingly by redacting that overreach.
Third, in portraying Trump’s order as an assault on transgender students, the media largely ignored that these are complex questions involving competing notions of privacy, liberty, and safety. Educators rightly seek to proceed with an eye to relevant state and federal law, local policy, and their own professional judgment. Given the tensions, it is easy to understand why these situations might best be handled close to home and on a case-by-case basis—and not in accord with blunderbuss dictates from Washington. Indeed, right up until the Obama directive, influential voices in the mainstream media were telling Republican governors that they should defer to local judgment. For instance, after South Dakota governor Dennis Daugaard vetoed a bill that would have restricted transgender bathroom use because he deemed it a local issue, he was cheered by the Washington Post for his “compelling conservative case against ‘bathroom bills.’”
If Obama had simply sought to ensure that schools and colleges would find ways to accommodate transgender students, his lawyers could have found broad support for some form of guidance. But he opted for a more combative course. What’s so striking is that the media last week chose to treat Obama’s legal adventurism as the anodyne status quo and Trump’s measured response as a radical threat. One almost gets the impression that journalists were more invested in their narrative than in the truth of the matter.
— Frederick M. Hess is the director of education policy studies at the American Enterprise Institute. Grant Addison is a research assistant at AEI.