WASHINGTON – The Trump administration on Wednesday revoked federal protections for transgender students who sought the right to use the public school restrooms that match their gender identity, taking a stand on a contentious issue that has become the central battle over LGBT rights.
Officials with the federal Education and Justice departments notified the U.S. Supreme Court that it was ordering the nation’s schools to disregard memos the Obama administration issued during the past two years that said prohibiting transgender students from using facilities that align with their gender identity violates federal anti-discrimination laws.
The two-page “dear colleague” letter included in a Supreme Court filing late Wednesday does not offer schools any new guidance, instead saying that the earlier directive needed to be withdrawn because it lacked extensive legal analysis, did not go through a public vetting process and sowed confusion and legal challenges. The administration said that it would not rely on the prior interpretation of the law going forward.
The departments wrote that the Trump administration wants to “further and more completely consider the legal issues involved,” and said that there must be “due regard for the primary role of the States and local school districts in establishing educational policy.” Though it offered no clarity or direction to schools that have transgender students, the letter added that “schools must ensure that all students, including LGBT students, are able to learn and thrive in a safe environment.”
The decision – delayed in part because the new secretaries of the two departments hit stalemates regarding timing and specific language – drew immediate condemnation from gay and transgender rights advocates, who accused President Donald Trump of violating past promises to support gay and transgender protections. Advocates said the withdrawal of the federal guidance will create another layer of confusion for schools and will leave transgender students, who are already vulnerable, even more so.
“Attacking our children … is no way to say you support and respect LGBTQ people,” said Mara Keisling, executive director of the National Center for Transgender Equality.
Others said the practical effect on the nation’s schools would be muted, in part because a federal judge had already blocked the Obama guidance temporarily in response to a lawsuit from 13 states that argued it violated states’ rights. And it is possible the U.S. Supreme Court could settle the matter soon, as it plans to consider a Virginia case involving a transgender teenager who was barred from using the boys’ bathroom at his high school.
The Trump administration’s move drew cheers from social conservatives who oppose the idea that a student can identify as a gender that differs from their anatomy at birth.
Vicki Wilson, the mother of a child at Fremd High School in Palatine, Illinois, said she sympathizes with children who have “difficult personal issues” to deal with, but thinks that “young men shouldn’t be permitted to deal with those issues in an intimate setting like a locker room with young women.”
School district officials in Palatine, bowing to federal pressure, allowed a transgender girl to change in the girls’ locker room at her school. “No school should impose a policy like this against the will of so many parents,” Wilson said, speaking during a news conference organized by the Alliance Defending Freedom, a Christian legal organization.
The administration’s letter was the source of some disagreement between the two issuing departments, with Attorney General Jeff Sessions eager to rescind the Obama administration’s guidance as court proceedings in related cases approached, and Education Secretary Betsy DeVos keen to leave it in place. Unlike Arne Duncan, Obama’s education secretary for seven years, DeVos does not have a close personal relationship with the president she serves; she also lacks the experience and political capital Sessions garnered as a Republican senator.
Sessions is widely known to oppose expanding gay and transgender rights, and DeVos’s friends say she personally supports those rights. The new letter is sure to ignite another firestorm for DeVos, who is fresh off her contentious nomination fight and has drawn protests from parents and teachers who feel she is unqualified for the job.
The letter also puts Trump squarely in the middle of the civil rights debate: Despite a flurry of activity in the early weeks of his presidency, Trump had not previously waded into the issue of gay and transgender rights.
Trump declined to sign an executive order last month that would have dramatically expanded the rights of people, businesses and organizations of faith to opt out of laws or activities that violate their religion, such as same-sex wedding ceremonies. Many took it as a sign that he would take a more liberal approach on gay issues than his Republican cohorts.
But in an interview with The Washington Post last year, then-candidate Donald Trump had indicated he would rescind the guidance based on the belief that it was a matter best left up to the states.
In the daily news briefing Wednesday, White House spokesman Sean Spicer downplayed the reports of disagreement within the administration – saying the debate came down to timing and some specific wording – and reiterated the states’ rights argument.
“The president’s made it clear throughout the campaign that he’s a firm believer in states’ rights,” Spicer said.
The Obama administration’s guidance was based on the position that barring students from bathrooms that match their gender identities is a violation of Title IX, the federal law that bars sex discrimination in public schools.
Many advocates contend the guidance merely formalized what courts have increasingly recognized: That discrimination against gay and transgender people is a form of sex discrimination because it is rooted in stereotypes about men and women. As a result, they believe transgender people already have the right under Title IX to use their preferred bathroom.
The new letter scrambles the calculus for a number of lawsuits working their way through the courts, particularly the case of Gavin Grimm, a transgender Virginia teen who sued his school board for barring him from the boys’ restroom. The case is scheduled for oral arguments before the U.S. Supreme Court next month. A lower court had cited the Obama administration’s position on transgender student rights in siding with Grimm.
Grimm said he was disheartened to hear that the Trump administration would withdraw the guidance. The Gloucester, Virginia, school board continued to bar him from the boys’ bathroom even after the guidance was issued, but Grimm said the Obama administration’s directive “was incredibly, incredibly empowering” for transgender students.
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