Jeff Sessions’ ‘States’ Rights’ Claims in Transgender Policy are Part of a Disturbing Tradition

Politics Features Jeff Sessions
Jeff Sessions’ ‘States’ Rights’ Claims in Transgender Policy are Part of a Disturbing Tradition

On Feb. 22, Attorney General Jeff Sessions announced that the Department of Justice and the Department of Education will not enforce Obama’s directive requiring schools to allow transgender students to use the restroom matching their gender identity. Sessions wrote, “Congress, state legislatures, and local governments are in the position to adopt appropriate policies or laws addressing this issue.”

Education Secretary Betsy DeVos echoed Sessions in her statement, saying that “this is an issue best solved at the state and local level.” In her recent Conservative Political Action Conference address, she said the federal guidance was “a very huge example of the Obama Administration’s overreach.”

The “states’ rights” argument has a long and sinister history, having been used by Confederates to justify keeping their slaves and by segregationists (including those in Sessions’ home state of Alabama) to keep their schools segregated.

Sessions was born in Hybart, Alabama, about 50 miles from Selma, in 1946, and he didn’t leave the state until half a century later, when he became a U.S. senator. So in the early 1960s, as his state was fighting desegregation, when police forces in Alabama and around the Deep South were beating, jailing and even killing black citizens for trying to register to vote, when the KKK and angry white mobs attacked their black neighbors and out-of-state civil rights activists, Sessions was an impressionable, conservative teenager.

It was in Sessions’ state, in 1965, that Bloody Sunday occurred, when police in Selma brutally attacked activists attempting to march to Montgomery to advocate black voting rights. He likely began school at Huntingdon College in Montgomery later that year.

As one might expect from a far-right conservative from the segregated Deep South, Sessions once said that the KKK was “ok” until he realized some of its members smoked pot, and that the NAACP and ACLU were “un-American” groups that “tried to force civil rights down the throats of people.” Just two years ago he defended the Confederate Flag.

His demonstrated racism was too much for the Senate to confirm him as a federal district court judge in 1986, but 31 years later, the Senate apparently thought his racism wasn’t enough to disqualify him from becoming the top lawyer in the country.

We now have an attorney general that white nationalist Trump adviser Steve Bannon credits with laying the groundwork for America’s populist nationalist movement long before Trump’s birtherism.

Sessions doesn’t just discriminate against African Americans; he is an outspoken opponent of both legal and illegal immigration, and he even employed Stephen Miller, an architect of Donald Trump’s Muslim ban, before he joined the Trump campaign. And he has consistently opposed LGBTQ equality. So it’s no surprise that Sessions would revive the states’ rights argument to justify discrimination against transgender people, members of our society who face an uphill battle just to gain basic human rights.

He’s done this before

So what happened the last time that Sessions’ invoked states’ rights to justify education policy?

The NYT recalled that in the early 1990s, Sessions, then attorney general of Alabama, fought a court decision that directed the state to remedy its inadequate funding of poor, predominantly black schools. Public schools in wealthy districts had twice the funds of schools in poor areas, and the latter schools were struggling to cover basic upkeep, accommodate special-needs students and pay their teachers. After 30 underfunded schools sued the state, and a district court judge ruled that the unequal school funding was unconstitutional, Sessions led the fight against that decision.

He called the ruling judicial overreach. The state and local governments could fix this on their own, Sessions somehow argued, despite the fact that they had utterly failed at providing equitable school funding over the 40 years since the Supreme Court ordered integration. A former chief justice of the Alabama Supreme Court said at the time that if Sessions was able to reverse the ruling, he would “consign an ever-growing number of Alabama schoolchildren to an unconstitutionally inadequate and inequitable education.”

The decision wasn’t overturned, but how to fix the inequity problem was left to the conservative state legislature, which did little to aid these poor schools. To this day, Alabama’s public schools are ranked among the worst in the nation.

And now, Sessions uses a states’ rights argument to discriminate against transgender and gender nonconforming people, but this time, he gets away with it easily. Allegedly DeVos wanted to keep the Obama guidelines in place, but Sessions and Trump threatened her, and she went along with them. This claim, however, is suspect, given her strict, conservative Christian faith and her family’s history of funding anti-LGBTQ hate groups.

Much more to come

Sessions has begun what will be a lengthy effort to dismantle civil and voting rights in America. In just three weeks as attorney general, aside from ditching trans rights, Sessions has already done these disturbing things:

* Greenlighting racially discriminatory voting laws. He withdrew the Dept. of Justice from a six-year lawsuit against a clearly discriminatory voter ID law in Texas. The law was passed immediately after the Supreme Court gutted the Voting Rights Act of 1965—which civil rights heroes fought and even died for—in 2013, allowing states and counties with a history of racially discriminatory voting practices to alter their elections laws without federal oversight. According to the Brennan Center for Justice, “the nation’s strictest voter photo ID law” disenfranchises more than 600,000 eligible voters, disproportionately African-American and Latino, who don’t possess one of the limited types of IDs required to vote.

* Encouraging racist law enforcement. Sessions is stopping the DOJ from investigating police departments accused of violating the civil rights of people of color. Under Obama, the DOJ opened 25 investigations into police forces and came to 19 agreements as a result. Scathing reports of deeply ingrained racism in departments in Ferguson, Missouri and Baltimore, for example, showed the urgency of federal investigations into unjust police departments. Yet Sessions and Trump think that instead of investigating institutional racism plaguing law enforcement across the country, we should just give them more money.

* Bringing back the War on Drugs. Not satisfied with disenfranching voters or color and subjecting them to racist police forces, Sessions appears eager to restart the War on Drugs, which began under Richard Nixon and was expanded under Ronald Reagan. Law professor Michelle Alexander’s hit book, The New Jim Crow, convincingly argues that in the absence of mid-century Jim Crow laws and earlier slavery, mass incarceration was the next method that white power in the U.S. used to control African Americans. A very effective way to fill prisons with disproportionately black inmates, the Nixon administration found, was by launching major crackdowns on marijuana possession and other nonviolent drug offenses. In 1994, Bill Clinton made things even worse, signing a crime bill that created preposterously long mandatory minimum sentences for minor drug offenses.

Unsurprisingly, Sessions wants to take part in this shameful tradition, and he’s already indicated that he’ll crack down on recreational marijuana use, claiming, in the fact-free Trumpian way, that pot is creating “real violence.” And to make locking people up even easier, Sessions rescinded a 2016 Obama directive ending the federal government’s use of private prisons, which, among other things, will profit from what will undoubtedly be a huge rise in detained immigrants under the fiercely xenophobic Trump administration. Another related “alternative fact” that Sessions has offered is that a recent uptick in violent crime, although still at historic lows, indicates a “dangerous permanent trend.” Experts roundly refute this claim.

As this story was going to the presses, the Washington Post released a major scoop that Sessions met with the Russian ambassador twice last year, and lied about it. When answering a question from Sen. Al Franken (D-Minn.) in a confirmation hearing, Sessions lied under oath to his fellow senators: “I did not have communications with the Russians.”

This is bad news for Sessions, but because of his central role in enacting the Trump agenda and his close relationships in the Senate, he could survive. If so, buckle up, folks, because this is just the beginning. Perhaps more than anyone else on Team Trump, Sessions could do the most domestic damage to the U.S.

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