The U.S. departments of Justice and Education rescinded Obama-era guidance on the rights of transgender students today, lifting requirements that schools allow students to use the restrooms and locker rooms that match their gender identity.
The Trump administration had long signaled the shift. White House Press Secretary Sean Spicer said Tuesday that the president believes the treatment of transgender students is a “states’ rights issue.”
“This is an issue best solved at the state and local level. Schools, communities, and families can find —and in many cases have found—solutions that protect all students,” Education Secretary Betsy DeVos said in a statement.
The Obama administration issued the rule in May, arguing that the sex-discrimination protections of Title IX, the federal civil rights law, apply to gender identity. In addition to directions on school facilities, the directive called upon schools to respond quickly to harassment of transgender students, to use their preferred gender on school forms and in assigning them to sex-segregated classes and activities, and to keep their transgender status secret if they did not wish to disclose it publicly. Federal civil rights guidance carries an implied threat that schools found out-of-compliance could lose federal funding if they don’t resolve their violations.
The guidance was met with praise from transgender rights groups and anger from conservative lawmakers, who argued it was federal overreach. A federal judge in Texas placed the guidance on hold in August while he considered a multi-state lawsuit on the issue. Withdrawing the guidance effectively makes that case and another multi-state lawsuit moot.
Some media outlets, including the New York Times, reported Tuesday that there was disagreement between DeVos and Attorney General Jeff Sessions about whether to rescind the guidance. Spicer said in the White House press briefing that the disagreement centered on the timing and wording of the announcement, not on the core decision.
Sessions and DeVos issued separate statements along with the agencies’ letter withdrawing the Obama-era guidance. DeVos’s statement emphasized a continued need to protect students from bullying and harassment. Sessions mentioned bullying, but focused more on interpretations of the federal law.
“I have dedicated my career to advocating for and fighting on behalf of students, and as Secretary of Education, I consider protecting all students, including LGBTQ students, not only a key priority for the Department, but for every school in America,” DeVos said.
“The Department of Justice has a duty to enforce the law,” Sessions said. “The prior guidance documents did not contain sufficient legal analysis or explain how the interpretation was consistent with the language of Title IX.”
Legal issues and transgender students
A case brought by a transgender Virginia boy against his school district is still due before the U.S. Supreme Court next month. A lower court granted Gavin Grimm an injunction against the Gloucester County school district’s policy that kept him from using the boy’s bathroom. The Supreme Court put that ruling on hold until it has time to consider his case.
The federal interpretation of Title IX has been at the heart of several cases brought by transgender students around the country against their schools. Judges who’ve sided with students were persuaded by the argument that, when there are two valid interpretations of a federal policy, such as Title IX protections, courts should defer to a federal agency’s interpretation.
It’s unclear exactly how this change in federal interpretation will affect Grimm’s case. On Twitter, an attorney with the ACLU who is representing Grimm argued his client still has a strong chance of success in court, where his legal team will center his case on the original meaning of Title IX, rather than asking the court to defer to the federal interpretation. In other words, did Congress write Title IX around a strict definition of biological sex, or the broader concept of gender?
PLEASE READ: on the rescinding of #trans student guidance. #StandWithGavin pic.twitter.com/nBMpGW2aSS
-- Chase Strangio (@chasestrangio) February 21, 2017
Grimm joined transgender-student advocates outside the White House last night to protest the administration’s decision.
No matter what happens, the Supreme Court cannot defeat a community so full love! #GavinGrimm speaking @whitehouse to #ProtectTransKids pic.twitter.com/46Lnkw9fvn
-- The Task Force (@TheTaskForce) February 22, 2017
Also at the protest was Catherine Lhamon, the assistant secretary for civil rights in Obama’s Education Department, who signed the original guidance.
Reactions from both sides of the debate
LGBT rights advocates, like Human Rights Campaign President Chad Griffin, compared the administration’s decision to past instances of discrimination.
Other times we’ve heard “states’ rights”...
-Ending Jim Crow
-Civil Rights Act
-- Chad Griffin (@ChadHGriffin) February 22, 2017
Conservative groups praised the decision.
.@BetsyDeVos No girl should be forced to change in front of, or share a hotel room with, a boy. Reverse Obama Admin. abuse of federal law.
-- AllianceDefends (@AllianceDefends) February 22, 2017
What does this mean for transgender students?
While the about-face at the federal level may remove a layer of legal protection for transgender students, it doesn’t change the ability for state and local decisionmakers to determine how to best accommodate transgender students in schools.
Many states have non-discrimination laws that set requirements for how schools should recognize gender identity. And many districts were already accommodating transgender students long before the federal guidance.
Lifting the federal guidance may remove political cover for some districts who would like to adopt such accommodations, which have been controversial in some communities.
The complication will be most visible in states that pass laws restricting school bathroom and locker room access by biological sex. To date, only North Carolina has such a law, but legislatures in many states have floated them during the current session. Without conflicting federal guidance on the issue, students in those states will be armed with one less argument should they decide to challenge state-level restrictions in court.
There is no federal data on transgender students in public schools. The Williams Institute at the University of California Los Angeles School of Law estimates that 0.7 percent of children ages 13 to 17, or 150,000 children, identify as transgender in the United States.
Education Week video has previously explored this issue in a piece about a Kentucky high school’s efforts to accommodate transgender students and one student’s experience with her own gender identity. You can view those videos below.
Photo: Gavin Grimm stands on the front porch of his home in Gloucester, Va., in 2015. The high school student, who was born female but identifies as male, says it’s discriminatory to make him use the girls’ room or a single-stall unisex restroom at school. --Steve Helber/AP
Related reading on transgender students:
- Trump Administration Signals Shift on Transgender Students. What’s Next?
- Nearly Half of States in Federal Lawsuits Over Federal Rules on Transgender Students
- Transgender Students and Bathrooms: What Should Schools Do?
- Many Schools Already Accommodate Transgender Students
- Obama Admin. to Schools: No Restrictions on Transgender Restroom Access
- Watch: Principal Explains How His School Created a Transgender-Student Policy
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A version of this news article first appeared in the Rules for Engagement blog.