President Donald Trump believes that decisions around which restrooms and locker rooms transgender students use in schools are best left to the states, and his administration will soon issue new guidance on the issue, Press Secretary Sean Spicer said Tuesday.
That guidance will roll back a rule issued by the Obama administration that required schools to grant transgender students access to bathrooms and locker rooms that matched their gender identity, even if it did not align with their biological sex at birth. Under that rule, schools that did not comply may have been found in violation of the sex-discrimination protections of Title IX, which Obama’s Departments of Justice and Education argued applied to gender identity as well as biological sex.
The Trump administration had signaled a rollback of that rule, which had triggered multi-state lawsuits from conservative state leaders who labeled it federal overreach. A federal judge put the guidance on hold last year while he considered one of those cases, and the federal interpretation of Title IX is also at the center of a case due before the Supreme Court in March.
A reporter asked about rumors that the Trump administration would rescind that rule in the White House briefing. Here’s Spicer’s answer:
Right now that's an issue that the Department of Justice and the Department of Education are addressing. I would tell you that—and I think there will be further guidance coming from DOJ in particular with respect to not just the executive order but also the case that's in front of the Supreme Court—the president has maintained for a long time that this is a states' rights issue and not one for the federal government. So while there will be further guidance coming out on this, I think all you have to do is look at what the president's view has been for a long time: that this is not something that the federal government should be involved in. This is a states' rights issue."
As I wrote previously, the federal interpretation that Title IX applies to gender identity has been at the core of court wins by transgender students who’ve sued their schools for restroom and locker room access.
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."
LGBT rights groups responded to rumors of a change Monday night.
-- HumanRightsCampaign (@HRC) February 21, 2017
-- GLSEN (@GLSEN) February 21, 2017
An ACLU attorney who represents transgender issues said the organization still plans to assert that Title IX protects Grimm before the Supreme Court.
— Chase Strangio (@chasestrangio) February 21, 2017
Education Week video has previously explored this issue in a piece about one 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: Chris Carlson/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
A version of this news article first appeared in the Rules for Engagement blog.