Controversy Over Title IX Protecting Transgender Students

The Department of Education declared that transgender students are protected under Title IX. But there are questions about how that will work on campuses, and what the legal complications might be.

MICHEL MARTIN, HOST:

I'm Michel Martin, and this is TELL ME MORE from NPR News. We're going to start today with some big news in the world of education. The Department of Education recently announced that transgender students are protected under Title IX. That's a regulation to protect people from discrimination based on sex in educational programs and institutions that receive federal financial aid. Now, advocates for transgender students are praising the decision, while others, as you might imagine, are calling it a step too far to protect a very small group of people.

We wanted to hear more about this discussion, so we have called upon two people who we've relied upon in the past to help us understand these issues from their different perspectives. Mara Keisling is executive director of the National Center for Transgender Equality. That's a policy advocacy group based in Washington, D.C. Welcome back.

MARA KEISLING: Thanks for having me.

MARTIN: And Gayle Trotter is an attorney, a columnist and senior fellow at the Independent Women's Forum. That's a conservative-leaning policy and research group. Welcome back to you as well.

GAYLE TROTTER: Thank you for having me.

MARTIN: So, Mara, let me start with you. You were telling us that advocates who've been working in this area are very excited about this. Tell me why you think this is significant and why you think it's necessary.

KEISLING: Well, it's been really clear for a long time that it's necessary that schools protect students from discrimination and from bullying and from sexual assault. And what the sexual assault guidance that was issued last week says is that the Department of Education agrees that Title IX prohibitions against sex discrimination includes discrimination against students because they are transgender. And that just sort of makes sense.

MARTIN: What would happen now, or what do you feel this does that allows to happen that did not happen before?

KEISLING: Sure. It's a really helpful thing for school districts. They now are being told very clearly that it is against the law to not protect transgender students. They have to allow transgender students full access to schools just like they allow anybody else. And this helps clarify what that means for the school district so they don't run afoul of the law, so they don't waste precious resources fighting lawsuits.

MARTIN: Gayle, you are skeptical of this. You said - you were telling us that you think it's a very blunt instrument for dealing with a problem with a very small population of people. Tell us more about your perspective on this.

TROTTER: This was guidance offered by the Department of Education avoiding having a change to this law, which would include gender identification, instead of going through the democratic process, vetting it, having Congress have an open and public debate and having the president choose to sign it or not. It's also - hasn't gone through the court process. So I think that's very important. Now, it's not part of the law, but it has a chilling effect on schools because they don't want to be investigated by the Feds. So they are going to change their behavior based on this guideline.

MARTIN: Well, that's obviously the point - I mean, for people to change their behavior. But my question to you is what's - is your objection to the substance, or is your objection to the process?

TROTTER: Both.

MARTIN: I mean, is your argument that - well, let me - tell me a little bit more about that. So on the substance of it, I mean, are you suggesting that transgender students should be discriminated against?

TROTTER: Definitely not. But the whole purpose the behind the passage of Title IX was to create full participation for the underrepresented sex, and we all know that that's women. And when you look at the studies that show how important sports are to women, gaining leadership positions and having the ability to assert themselves in the workplace, we understand that it's critically important for women to have those opportunities.

So the idea behind Title IX was to allow full participation by women. This guidance offered by the Department of Education is going in the opposite direction. It's going to reduce opportunities for women to participate in sports in school.

MARTIN: So tell me then again your objection on the process question.

TROTTER: Yes, we talked frequently about culture wars, and why can't people accept the fact that our society has changed and our culture has changed? And part of it is because these edicts come down that are not part of the political process, that have not been debated, and people feel like they are left out of the debate.

So for 42 years, the law has meant one thing. It meant that sex distinctions are important, and we can recognize that in these two particular areas that this guidance was released on -sexual violence, sexual assault and female participation in athletics. So in those two areas, for 42 years, gender identification was not part of that. So it's completely contradictory to the entire language of the law, and it also does not allow the American people who have differing views on this to have input in this process.

MARTIN: It would seem to me that at least some of the transgender students are girls, or at least they identify as women. So it seems to me that they would be covered under your kind of rubric. But let me ask Mara to address those two questions that you just raised.

And if you're just joining us, we're talking about the Department of Education's recent announcement that transgender students are protected under Title IX. That's a regulation that bans sex discrimination in institutions and educational programs that receive federal financial aid. So I think I'm kind of interested in the process question first, if you don't mind...

KEISLING: Sure.

MARTIN: ...Because I think her argument is that this is the kind of thing that creates a backlash, is that it doesn't give people a chance to get used to the idea, to discuss the idea, and it actually impedes acceptance. So, if you don't mind, taking that argument first.

KEISLING: Sure, absolutely. Well, the process question is always brought up by the people who oppose the policy. The process works the same way in both directions depending on who's in charge, and that's true. And when people do something I don't like, and the process isn't what it used to be, it can bother me. But it's still a process. Everything that was done was done according to the law. I just don't believe the process question is important particularly because...

MARTIN: Well, but - but - wait a minute, Mara. Let me push you on that because, well, of course it's brought up by the people who don't like it because in part, what they're saying is, give me a minute to get used to this, or let me think about it, or let me figure out how this works in my life. And so - well, sure.

KEISLING: Well...

MARTIN: So - but I think that's her point is that it creates more anger among the people who don't like it.

KEISLING: Well, I think that's right, except that when the pendulum swings the other way and the exact same process is being used for things that other people like, they won't complain about the process. Yeah, the process is clearly very important. But in this case, remember, we're talking about sexual assault and sexual violence largely, and that they would say - and this includes transgender people - they have to be protected, too, nobody opposes that. I mean, I cannot believe there are any reasonable people in the United States who believe that transgender people shouldn't be protected - transgender students...

MARTIN: But that's not all that this...

KEISLING: ...Shouldn't be protected from sexual violence.

MARTIN: But that's not all that this addresses, isn't it? I mean, it does address participation. I mean, isn't that your hope? I mean, if that's all it addresses - not that violence isn't important because clearly it is - but part of it is that the hope is that it actually addresses other matters as well. So...

KEISLING: Well, we do hope that the Department of Education issues guidance around specific instances where transgender students have to access programs, facilities, etc. But that's not what this did. This really was primarily about sexual assault and sexual violence. And then they said, and by the way, our reading of Title IX is that that protects transgender students as well, which of course means that we have reason to hope that they might do guidance that's more specific to other situations.

MARTIN: Isn't that one of your few criticisms is that it's too vague, is that you would like it to be more specific and addressing some of these other areas?

KEISLING: Right, we think it's really in the school's - it's to the school's advantage, it's to the parents' and students' advantage for everybody to understand their rights and responsibilities. So we would like to see clarification in the form of guidance around transgender students more generally and in specific circumstances in schools.

MARTIN: Gayle, you were talking about the fact that, you know, obviously sometimes that's what the Constitution does, it balances interests.

TROTTER: Yes. Yes.

MARTIN: It balances one interest against another. Can I push you on this question of whether a student who is transgender should be - how that student should be treated when he or she comes to school? I mean, are you saying that that student should not be able to participate in all the other programs that other students can participate in?

And I also want to ask more about your sense that this actually is to the detriment of women who are born as women, who are traditionally thought of as women apart from being transgender. Why do you feel that this is damaging to their interest?

TROTTER: Well, first I want to respond to the point about sexual assault.

MARTIN: Yeah.

TROTTER: And there are already many laws about sexual assault. So no one on my side of this issue would think that anybody should be sexually assaulted or discriminated against because of their being male, female, transgender, whatever. And if we feel like that people are not being adequately protected in terms of sexual assault, then we need to empower the police to have more prosecutorial investigatory power.

And we also need to increase the punishment for sexual assault. There are ways it can be done that don't implicate throwing open the locker rooms, throwing open the bathrooms and denying women the opportunity for a full participation, which is what Title IX was intended to protect in the first place.

So you take a women's soccer team. You have 35 women on the soccer team. They have a right to privacy, a constitutionally protected right to privacy. And then you have one transgender student who wants to participate on the soccer team. You have a greater risk of injury if you allow the transgender person to participate on the soccer team. You're denying a woman a spot on the team possibly, which is what Title IX is intended to do.

And most importantly, no one has a constitutional right to uninjured feelings. So when you're balancing the constitutional right to privacy versus a non-constitutional right to non-injure feelings, the constitutional right should trump the non-constitutional right.

MARTIN: Mara, I'm going to give you a minute. Final thought here?

KEISLING: Well, there is no reason in the world to think that transgender people are going to injure people. I don't even know where that came from. But NCAA has really good rules now and have for quite a few years - transgender participation in sports.

This isn't about people getting to decide who's men and women. And that's part of what Gayle's trying to say is that she knows who women are, and transgender people aren't either men or women. And that's wrong, and it's unfair. And it's unscientific, and it's illegal.

MARTIN: Final thought?

TROTTER: The point about the risk of injury, I think, Mara took the wrong way. I didn't mean that they would be combative. I mean there are physical differences between men and women. And even if you've had hormone therapy or other types of procedures, you're just generally, on a statistical average, going to be taller with...

MARTIN: Yeah, but there are really tall women who are born biological women, and there are really small men who are born biological men.

TROTTER: I agree.

MARTIN: I mean, I was at dinner the other night, and I saw the, you know, Super Bowl-winning quarterback who is smaller than I am.

TROTTER: You have to look at the averages. And for women to go to participation - I think this is a really important point. Before Title IX was passed, if you looked at the high school participation of male athletes versus female athletes, it was about 3.3 million male athletes participated in high school sports. And in 1971, less than 300,000 women participated. We've seen almost a thousand percent increase on female athletes who participate in high school athletics now. I don't want to see us rolling in the other direction.

MARTIN: Gayle Trotter is an attorney. She's a columnist and a senior fellow at the Independent Women's Forum. That's a conservative-leaning policy and research group. Mara Keisling is executive director of the National Center for Transgender Equality. They were both here with us in Washington, D.C. once again. And I thank you both again for speaking with us.

TROTTER: Thank you.

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