In August, 2013, Governor Jerry Brown signed into law AB1266 and in doing so, made California the first state in the nation to enshrine key rights for transgender K-12 students in state law.
AB1266 required public schools to allow transgender students access to whichever restroom and locker room they wanted.
Now, transgender students are once again forced to watch as their civil and human rights are debated on a national level. However, the controversial transgender case that originated in Texas, Gloucester County School Board v. GG, pending before the U.S. Supreme Court may not only be about civil rights, it could be about much more.
Almost immediately upon taking office, it appeared Attorney General, Jeff Sessions conspired with the newly appointed Secretary of Education, Betsy DeVos and rescinded a directive issued by President Obama last spring. The directive confirmed the federal government’s position regarding transgender students at public schools as having the right to be treated according to their gender identity, not their gender at birth.
Although Obama’s “Dear Colleague” letter was not encoded in law, it carried the weight of the presidency and offered consequences for non-compliance. Such letters from the U.S. Department of Education were historically issued to help clarify complex areas of federal law, especially as it relates to spending and accounting; however, due to un-precedent stonewalling by congressional Republicans during the Obama administration, such “Dear Colleague” letters were used more often to address controversial issues and pushed hard for immediate changes. Such letters are also referred to as “significant guidance documents.”
Similar to a president’s use of executive orders, “significant guidance documents” have been used across the board whether in regards to education, the environment or health care. Historically, both Democratic and Republican administrations have used them, Republicans were highly critical of their use during the Obama administration; but fully embrace their use by President Trump.
Experts believe the transgender case now before the Supreme Court may ultimately define two important issues. Firstly, whether Title IX only applies to the sex of a student and not his/her sexual identity which to many observers would appear contrary to the spirit of civil rights; and secondly, what limits, if any, should be applied to non-regulatory federal guidance or “significant guidance documents.”
Gloucester County School Board v. GG involves a high school student who, during the 2013-14 school year, was diagnosed with gender dysphoria. The student subsequently obtained permission from the school’s principal to use the boy’s restroom during the 2014-15 school. Several residents in the county demanded that the student be barred from doing so. A lawsuit pursued and has made its way through the judicial system to the U.S. Supreme Court.
Due to the mandates outlined in California’s AB1266, whatever the Supreme Court ultimately rules in Gloucester County School Board v. GG case, it is expected to have no impact on the state’s students or school districts.
The Voice/Black Voice News will continue to follow this story.