The Trump administration’s decision to rescind Obama-erawon praise from conservative organizations and officials, who said the guidance was federal overreach and a threat to the privacy rights of students.
But transgender advocacy groups, families of transgender students, and a long list of national education groups say leaving a civil rights issue to local decisionmakers would remove an important layer of protection from vulnerable students, threatening their well-being.
Attention of advocates and conservative activists alike now turns to the U.S. Supreme Court, which is setthis month, and to at least five other lawsuits on the issue pending in federal courts.
The high court has asked both parties in the case before it to give their views on the administration’s decision to rescind the guidance.
The U.S. departments of Justice and Education issued a “Dear Colleague” letter Feb. 22 that lifted requirements that schools allow students to.
The Trump administration had signaled the shift. In retracting the guidance, it did not provide its own interpretation of whether the sex discrimination protections in Title IX apply to gender identity, the position taken by the Obama administration.
“This is an issue best solved at the state and local level,” U.S. Secretary of Education Betsy DeVos said in a statement.
Advocates insisted that the federal law still protects transgender students, regardless of the interpretation of the current administration.
In addition to directions on school facilities, the Obama administration’s May directive—which had been placed on hold by a federal court pending litigation—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 could lose federal funding if they don’t comply.
More Than Bathrooms
While bathroom policies have gotten the most attention, the issue at hand is whether schools will acknowledge transgender students’ core identities, advocates said.
“The reality is that while schools nationwide are increasingly supporting and affirming transgender students, the majority of transgender students have been left behind,” said a joint statement from 19 organizations, including GLSEN, the National PTA, and the National Association of Secondary School Principals, which had asked for the original guidance. “For the 60 percent of transgender students who do not attend a school with supportive and affirming policies, life can be much more difficult—and even dangerous.”
The organizations also disputed the Trump administration’s assertion that the guidance had created confusion among school districts.
The decision was the first major policy announcement by DeVos, who entered office a few weeks ago after a bruising confirmation battle. Some media outlets, including the New York Times, reported that there wasabout whether to rescind the guidance. White House Press Secretary Sean Spicer said the disagreement was about the timing and wording of the letter, not on the core decision.
Sessions and DeVos issued separate statements along with the agencies’ “Dear Colleague” letter withdrawing the 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.
Sessions said the guidance “did not contain sufficient legal analysis or explain how the interpretation was consistent with the language of Title IX.”
The Williams Institute at the University of California, Los Angeles’ School of Law estimates that 0.7 percent of U.S. children ages 13 to 17, or about 150,000, are transgender.
The federal rollback of the guidance doesn’t limit the ability for state and local decisionmakers to set policies for transgender students. Fifteen states have non-discrimination laws that include gender identity. And many districts were already accommodating transgender students long before the federal guidance.
North Carolina has the only state, but legislatures in many states have floated similar proposals.
The Trump administration’s decision will now trickle down to several pending court cases.
On the same day the Obama administration guidance was rescinded, the U.S. solicitor general’s office informed the U.S. Supreme Court of the change, explaining in a filing that the Education and Justice departments had decided “not to rely on the views expressed in the [Obama] guidance, and instead to consider further and more completely the legal issues involved.”
What that means for the Virginia student Gavin Grimm’s case, Gloucester County School Board v. G.G., is not entirely clear. Grimm, a transgender boy, has been denied the use of boys’ school restrooms. In ruling for Grimm last April, the 4th Circuit court gave deference to a letter outlining the Education Department’s views by James A. Ferg-Cadima, then an official in the department’s office for civil rights. The document this week specifically rescinded that letter.
While there has been speculation that the Trump administration’s move might motivate the Supreme Court to find a way to avoid deciding the case, neither party is asking it to do so at this point. The court on Feb. 24 asked lawyers for the Gloucester County school board and Grimm to give their views on how the case should proceed.
But Joshua A. Block, an American Civil Liberties Union lawyer representing Grimm, said—prior to announcement of that request—that even if the Obama administration’s approach is no longer a factor in his case, the question of whether Title IX’s reference to discrimination “based on sex” is something the high court could still rule on.
The ACLU argues that the Gloucester County school board’s policy limiting restrooms to people of “corresponding biological genders” violates the plain text of Title IX. “The board’s discriminatory treatment of Gavin is explicitly ‘on the basis of sex,’” the brief says.
Meanwhile, the Gloucester County school board praised the Trump administration’s action in a statement and said it looked forward to telling the high court “why this development underscores that the Board’s common-sense restroom and locker room policy is legal under federal law.”
While there has been speculation that the Trump administration’s move might motivate the Supreme Court to avoid deciding the case, neither party is asking it to do so at this point.
Meanwhile, at least five other lawsuits are pending around the country involving transgender issues in schools. The most prominent one is Texas v. United States, in which Texas, 10 other states, two school districts, and other plaintiffs challenged the Obama administration’s transgender-student guidance, receiving the nationwide injunction that had.
Texas Attorney General Ken Paxton called the Trump administration action “encouraging.” With the change, the Texas case may have little left to it, legal experts said.
The same is not necessarily the case in other suits, some involving transgender students seeking facilities access, and others filed by families who object to school policies that allow transgender students to use facilities consistent with their gender identity. In several cases, rulings have been based not just on deferring to the then-prevailing Obama administration guidance, but on Title IX’s statutory protections.
Gary S. McCaleb, a lawyer with the Alliance Defending Freedom, a Scottsdale, Ariz.-based group that is involved in three cases that contend Title IX does not cover gender identity, said the Trump administration’s action will “allow the federal government to extract itself as a defendant in some of these lawsuits.”
“But it is correct that it is more than just the [Obama administration] guidance that is at issue,” he said, “so those cases won’t all just go away.”
A version of this article appeared in the March 01, 2017 edition of Education Week as Attention Turns to Courts in Battle Over Transgender Rights