by Nausica Palazzo

The Trump administration has repealed on Wednesday the controversial ‘Dear Colleagues Letter on Transgender Students,’ issued by the Department of Justice (DoJ) and the Department of Education (DoE) on May 13, 2016 (along with a letter from Ferg-Cadima, Acting Deputy Assistant Secretary for Policy at the DoE Office for Civil Rights, dated January 7, 2015). Thus, if someone was wondering if Trump would have maintained the Obama’s legacy in the field of civil rights– based on its indulgent position during the presidential campaign, – well, his cards are now laid on the table and the answer is no.

On May 13, 2016, the DoJ and DoE issued a Dear Colleagues Letter with an aim to interpret extensively Title IX, forbidding sex-based discrimination under any education program or activity receiving Federal financial assistance. According to these guidelines, Title IX shall have been interpreted as banning also discrimination based on gender identity, including discrimination against transgender students. Pursuant to the letter, every student claiming to be transgender shall have been allowed to access restrooms, shower facilities, locker rooms, and athletic teams consistent with his/her gender identity.

Such interpretation gave rise to intense litigation among states and the federal administration, culminating in the case Texas v. United States (N.D. Tex., Civil action No. 7:16-cv-00054-O), in which a federal district court of Texas granted a nationwide preliminary injunction, preventing its application. The successful claims of the states were grounded on the following allegations: a) a violation of the Administrative Procedure Act (“APA”), and particularly of the rule requiring the government to give states notice and comment at the beginning of rule-making procedure; b) substantive incompatibility with Title IX, referring to ‘sex,’ not ‘gender identity;’ c) a violation of the spending clause, requiring that states partake in every decision concerning spending review.

A second landmark decision on the matter is Gloucester County School Board v. G.G. (Docket No. 16-273, certiorari granted 10 October 2016). Following the decision of the 4th circuit Court of Appeals, interpreting Title IX as to include a prohibition against gender-based discrimination, the Supreme Court granted certiorari. The appealed decision held, in fact, unconstitutional the policy issued by the School Board in Virginia, preventing students from accessing school facilities based on their perceived (and asserted) gender identity, and held that the Ferg-Cadima letter is not incompatible with Title IX. The Supreme Court hearing is scheduled next March 28, 2017. While the Court refused to overrule the Auer precedent – a doctrine demanding courts to ‘show deference’ to an agency’s interpretation of its own regulations, unless such interpretation is «plainly erroneous or inconsistent with the regulation» –, it granted certiorari on the following two questions: 1. How and when should the Auer-deference be applied by lower courts? and 2. Is the Departments’ interpretation of Title IX binding?

One could then legitimately wonder whether the recent move of the Trump administration makes such judgment ‘useless,’ for claims could be dismissed based on a termination of the dispute (‘cessata materia del contendere’), which derives from the repeal of the Ferg-Cadima letter. There is no univocal answer for this question. Technically, the case should be dismissed as for the second issue (binding nature of the Letter). However, multiple statements and letter exist which interpret extensively Title IX (and Title VII, concerning discrimination in employment). Among those: a 2010 Dear colleagues letter of DoE prohibiting discrimination against transgender students in schools; a DoE statement of 2014 preventing discrimination on similar grounds, and many others concerning Title VII. Thus, parties might still want the Court to have a final say on the matter as to the first issue, concerning the application of the Auer-deference.

Now, the Dear Colleagues Letter has been repealed on grounds that echoes the reasoning of the district court in Texas v. United States. First and foremost, according to the government, the guidelines do not contain sufficient legal analysis and explanations on their consistency with Title IX (that is why it should be interpreted as encompassing transgender students’ protection). Secondly, the government takes a federalist stance on the issue, with an aim to respect the vertical separation of power and the autonomy of states and local school authorities in determining their internal policies («the Departments believe that, in this context, there must be due regard for the primary role of the States and local school districts in establishing educational policy»).

The conclusion of the bathroom saga was all but predictable. The LGBT community had expressed concerns about the ambiguity of the Trump administration in dealing with civil rights. In the wake of Trump’s victory, uncertainty gave indeed rise to a rush by transgender people to legally change their sex, fearing a backlash that now, upon the withholding of the Dear Colleagues Letters, materialized. This move also risks fueling concern for the survival of the mandate to recognize same-sex marriage (pursuant to the Obergefell decision).

In the aftermath of the President’s victory, David Remnick, editor of The New Yorker, warned against normalizing Donald Trump. Normalization was already occurring in the media, where he ended up being described as someone deserving time to show his potential, as an educated man who deserved to be given a try, as if there were room for improvement. That reminded me of the Kundera’s incipit in The Unbearable Lightness of Being, where a man, looking at the discolored pictures of his relatives before a reddish sunset, instantly rubbed away any resentment against Hitler for having killed his relatives: «This reconciliation with Hitler reveals the profound moral perversity of a world that rests essentially on the nonexistence of return, for in this world everything is pardoned in advance and therefore everything cynically permitted.» This parallel does not mean that the president should be compared to the cruel dictator. It just seems to me that former opponents are absolving him in advance, as if you cannot condemn something which is ephemeral, as if you cannot pass judgment on something that occurs only once and that is thus ‘light’ by definition.

Recent moves on immigration, environmental protection, abortion rights and now transgender rights make unquestionably apparent the weight that lobbies exert on its administration. In the specific case, social conservatives and religious communities, backed by Attorney General Jeff Sessions, held ransom the federal administration and demanded that the loyal support granted during the campaign be paid back. Furthermore, this move makes duly clear how republicans are determined to keep their stance on civil rights. We thought that Trump could have erased differences in traditional notions of right and left in the U.S., corresponding to the traditional distinction between social conservatives and social progressives. However, this is not the case and we will have to cope with it in the next few years.