The Trump administration on Wednesday revoked federal guidelines specifying that transgender students have the right to use 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 late Wednesday that the administration is ordering the nation’s schools to disregard memos the Obama administration issued during the past two years regarding transgender student rights. Those memos said that prohibiting transgender students from using facilities that align with their gender identity violates federal anti-discrimination laws.
Civil rights groups, meanwhile, denounced the withdrawal as a politically motivated attack that will endanger transgender children and sow confusion over the federal government’s role in enforcing civil rights.
Last May, the departments of Education and Justice issued joint guidance directing schools to let transgender students use facilities that correspond with their gender identity. The “Dear Colleague” letter, addressed to school districts and colleges that receive federal funding, was based on the Obama administration’s interpretation of Title IX, the federal law that bans sex discrimination in schools, to include gender identity.
Reaction was swift and divisive, culminating in the Trump administration’s first “Dear Colleague” letter rescinding the guidance without offering a replacement. Issued jointly by the departments of Education and Justice, the letter did not take a position on the underlying question of whether Title IX protects gender identity.
The departments withdrew the guidance “in order to further and more completely consider the legal issues involved,” the letter said.
The announcement follows the Department of Justice’s recent withdrawal from a court challenge related to the guidance. Observers said it portended more anti-LGBTQ sentiment from the administration, despite promises from President Trump and Education Secretary Betsy DeVos to protect the LGBT community.
“This is a mean-spirited attack on hundreds of thousands of students who simply want to be their true selves and be treated with dignity while attending school,” Mara Keisling, executive director of the National Center for Transgender Equality, said in a statement.
How we got here
The Obama administration said the guidance was based on best practices from schools across the country that have already taken up the issue. Though many states have laws consistent with the guidance, lawmakers and educators called the directive federal overreach that threatened safety and privacy of non-transgender students.
Texas Attorney General Ken Paxton sued on behalf of several states and won a nationwide injunction barring federal agencies from taking action against the schools that resisted the guidance. The Justice Department under the Obama administration challenged the lawsuit and arguments were scheduled for early February. Then, one day after former Alabama Sen. Jeff Sessions was sworn in as attorney general, the Justice Department withdrew its challenge so the parties could decide “how to best proceed.”
Paxton welcomed the withdrawal and said his office was evaluating how it would impact the litigation.
“Our fight over the bathroom directive has always been about former President Obama’s attempt to bypass Congress and rewrite the laws to fit his political agenda for radical social change. The Obama administration’s directive on bathrooms unlawfully invaded areas that are left to state discretion under the Tenth Amendment. School policy should center on the safety, privacy and dignity of its students, not the whims federal bureaucrats.”
Why the guidance was rescinded
In the two-page letter to public schools, the Trump administration said the Obama-era guidance did not provide “extensive legal analysis” of how its position was consistent with Title IX.
The letter cited “significant litigation” caused by the guidance, showing the need for “due regard” of the role of states and local school districts in shaping education policy.
“As President Trump has clearly stated, he believes policy regarding transgender bathrooms should be decided at the state level,” the White House said in a statement.
“The joint decision made today by the Department of Justice and the Department of Education returning power to the states paves the way for an open and inclusive process to take place at the local level with input from parents, students, teachers and administrators.”
However, sources told CNN Wednesday that DeVos originally opposed a draft of the Trump administration’s plan for withdrawing the guidance.