The future of federal civil rights guidance requiring schools to treat transgender students according to their gender identity, even if it differs from their sex at birth, is uncertain after recent moves by President Donald Trump’s administration.
That guidance, released by the Obama administration last year, required public schools to allow transgender students to use restrooms and locker rooms that match their gender identity. Schools found in violation of that guidance—based on the Obama administration’s interpretation that the prohibitions against sex discimination in Title IX apply to gender identity—could be penalized with a loss of federal funds.
A federal judge in Texas issued a nationwide injunction last year, placing that guidance on hold while he considers a multi-state legal challenge brought by state leaders who called the rules federal overreach that threatens the privacy rights of students.
Trump himself has not taken a position on the guidance, but the U.S. Department of Justice on Friday dropped the agency’s push— initiated under Obama—to challenge that injunction. In other words, Trump’s Justice Department is not pushing to re-activate the rule.
The Justice Department is considering “how best to proceed in this appeal,” it said in a legal motion filed with the U.S. Court of Appeals for the Fifth Circuit, in New Orleans.
The move did not seem to surprise civil rights groups, who’ve sounded alarms when Trump’s education adviser signaled a plan to scale back the federal approach to education civil rights. Many issued strong statements condemning the Justice Department’s decision.
“Transgender students are entitled to the full protection of the United States Constitution and our federal nondiscrimination laws,” said Human Rights Campaign President Chad Griffin. “It is heartbreaking and wrong that the agency tasked with enforcing civil rights laws would instead work to subvert them for political interests. President Trump must immediately reverse course and direct the DOJ to uphold guidance protecting transgender students.”
The federal interpretation of Title IX is central to several federal lawsuits about the rights of transgender students. To date, transgender students have had the most success with the argument that, where Title IX could logically be interpreted multiple ways, courts have the obligation to defer to the federal agencies’ interpretation that it applies to gender identity. But, if the federal agencies change that interpretation, such legal challenges will lose their grounding.
Virginia student Gavin Grimm, who sued to use the boys bathroom at his school, has succeeded so far in federal courts with that argument. But the U.S. Supreme Court has put a lower court’s order allowing him boys’ bathroom access on hold until it considers his school district’s appeal in March 28 oral arguments.
Even if the Trump administration withdraws the federal guidance, school districts can still adopt their own polices to accomodate transgender students according to their gender identities. And some states, like California, have state-level anti-discrimination laws that include transgender students.
But, without the federal guidance, there would be less legal ground for transgender students to challenge school rules or state-level laws that restrict restroom and locker room access according to biological sex. To this point, only North Carolina has such a law, but state legislatures, including Texas’, have proposed similar measures this year.
Here’s a video from the ACLU of Grimm and his mother sharing his story.
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:
- 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.