Imagine with me: One early morning my son Jonah lopes through the high school halls, high-fiving students from the marching band and volunteer “buddies” from his social skills club. When an administrator greets him, he responds (inappropriately, but that’s my boy), “’sup, dude,” and continues on to his first class of the day.
It’s a normal day for my not-so-normal kid who has multiple disabilities—until he walks through the classroom door and heads for his desk. Suddenly he startles with confusion: Someone from the technology department has taken his laptop away, an essential tool that compensates for illegible handwriting. He looks at his daily schedule and sees that his appointments with his speech and occupational therapists are crossed out. And where’s the aide who takes him to a mainstreamed classroom where the normal course content is modified?
In short, the system has erased the accommodations that enable Jonah to participate in his school community.
This scenario is, indeed, imaginary. If it had happened, we would have had federal law—specifically, the Individuals with Disabilities Education Act (IDEA)—to fight for Jonah’s right to an individualized public education in the least restrictive environment.
However, in yet another iteration of the Trump administration’s insidious rescission of civil rights protections, this past weekend it was leaked that the Department of Health and Human Services (HHS) intends to shift from the Obama administration’s inclusive interpretation of Title IX to redefine gender as “either male or female, unchangeable, and determined by the genitals that a person is born with.”
The proposed definition adds that, “Sex means a person’s status as male or female based on immutable biological traits identifiable by or before birth.” The department’s memo, which was drafted and has been circulating since last spring, also includes that, “The sex listed on a person’s birth certificate, as originally issued, shall constitute definitive proof of a person’s sex unless rebutted by reliable genetic evidence.”
We’ve Seen This Retraction of Civil Rights Before
We’ve seen this retraction of civil rights before. Indeed, it’s a pattern that has become distressingly familiar, especially within the federal education department under the regime of Secretary Betsy DeVos, the antithesis of King Midas: Everything she touches turns to shit. Just in the last few months DeVos has authorized or considered roll-backs in protections for students with disabilities and students of color.
And now HHS is gunning for transgender students, as well as adults, who total 1.4 million Americans.
Imagine with me once more. Let’s say that Jonah is different not because he is developmentally-delayed but because he’s transgender. What would this mean for him as he ambles down the hallways of his high school?
It would mean that teachers wouldn’t have to call him by the name he chose to correlate with his gender identity.
It would mean that he would not be permitted to use the bathrooms and locker rooms intended for the gender with which he identifies.
It would mean that, like this Stafford, Virginia, middle school student, he could be abandoned during an active shooter drill because teachers couldn’t decide if he should hide in the girls’ or boys’ locker room.
It would mean that his civil rights to a public education would be compromised because he’d be barred from access to accommodations commonplace for cis-students.
Now, let’s not panic. Joshua Block, an attorney with ACLU’s LGBT Project, tweets that “they [HHS] can’t make a new law” but “just interpret existing law,” and, anyway, this reactionary interpretation would be be challenged in courts where, he predicts, LGBTQ advocates would prevail.
2. As I understand it, this is a proposal for how agencies will interpret the scope of protections from sex discrimination in Title VII, IX and other civil rights statutes. They can’t make a new law. They can just interpret existing law.
— Joshua Block (@JoshABlock) October 21, 2018
And yet I do not find this reassuring.
This Is Not an Imaginary Nightmare
Over and over again the current administration peels away layers of civil rights like onion skins, sloughing away protections for traditionally-disenfranchised Americans. Some may shrug them off as minor tweaks in domestic policy. But this slip-sliding sideshow now encompasses areas as diverse as political asylum, immigration, criminal justice, voting rights, affirmative action, gender identity and public education.
Advocates are taking action and #Won’tBeErased is trending. But Twitter isn’t real life. Some high school students—more than we know, no doubt—are trudging down hallways not with high-fives but with trepidation, keenly aware that their innermost identities are at risk of effacement.
Parents and activists wrote down the names of more than 700 #transgender children who could not be here at the #WeWontBeErased rally in #DC to show the Trump administration that kids would be hurt by changing the legal definition of gender to one of biology from birth. pic.twitter.com/cvfnDUv78u
— Marissa J. Lang (@Marissa_Jae) October 22, 2018
This is not an imaginary nightmare, like Jonah discovering that all his supports have evaporated. This is real life. It’s true that right now the HHS’s specious reinterpretation of Title IX is counterweighted by the fact that courts have ruled that transgender people are protected through sex discrimination laws. One pundit even suggested that the draft memo memorializing the reinterpretation was merely an evanescent attempt to “score political points in an election.”
But meanwhile, transgender students, who already carry the burden of a mismatch between their physical anatomy and their psychological sense of self, face potential subjugation by a system that once barred my Jonah from the schoolhouse doors and relegated people of color to the back of the bus.
We’re going backwards. It’s positively un-American.