Trump administration lifts bathroom guidance for transgender students
Published 1:39 pm Thursday, February 23, 2017
WASHINGTON (AP) — The Trump administration on Wednesday ended federal protection for transgender students that allowed them to use public school bathrooms and locker rooms matching their gender identities.
The Justice and Education departments said in a letter being sent to school districts nationwide that the Obama-era guidance caused a spike in lawsuits over how the guidance should be applied.
It will now be up to states and school districts to interpret federal anti-discrimination law and determine whether students should have access to restrooms in accordance with their expressed gender identity and not just their biological sex.
“This is an issue best solved at the state and local level,” Education Secretary Betsy DeVos said. “Schools, communities, and families can find — and in many cases have found — solutions that protect all students.”
Although the earlier directive carried no force of law, transgender rights advocates say it was necessary to protect students from discrimination. Opponents argue it was an example of federal overreach.
Here’s a look at the issue and what could happen next:
About 150,000 young people — 0.7 percent of those between the ages of 13 and 17 — in the United States identify as transgender, according to a study by The Williams Institute at the UCLA School of Law.
The Obama administration last May told public schools to grant bathroom access even if a student’s chosen gender identity isn’t the same as what’s in their record. The Obama administration’s guidance was based on its determination that Title IX, the federal law prohibiting sex discrimination in education and activities, also applies to gender identity.
Obama’s guidance was not legally binding but sent a warning that schools could lose funding if they did not comply with the administration’s interpretation of the law.
Republicans immediately pushed back, arguing it was an example of the Obama administration meddling in local matters.
Thirteen states sued to challenge the directive.
Attorney General Jeff Sessions said Wednesday the Obama administration did not adequately explain its interpretation of Title IX.
“Congress, state legislatures and local governments are in a position to adopt appropriate policies or laws addressing this issue,” he said.
The change in position will have no immediate impact on schools, as a federal judge in Texas temporarily blocked the Obama guidance in August.
But it could have consequences for unresolved court cases dealing with Title IX.
They include a case set to be heard by the Supreme Court in March involving a transgender teen who was denied a choice of bathroom access in Virginia.
The high court could decide not to hear the case and direct lower courts to decide that question instead.
Similar lawsuits are still playing out across the country.
What will change mean?
Even without the guidelines, advocates say federal law will still prohibit discrimination against students based on their gender or sexual orientation. The ACLU said schools remain free to provide the same treatment to students even without guidance.
“To cloak this in federalism ignores the vital and historic role that federal law plays in ensuring that all children (including LGBT students) are able to attend school free from discrimination,” Vanita Gupta, who was head of the Justice Department’s Civil Rights Division when the guidance was issued, said in a statement.
A patchwork of state laws dealing with the bathroom issue will continue to emerge.
Fifteen states have explicit protections for transgender students in their state laws, and many individual school districts in other states have adopted policies that cover such students on the basis of their gender identity, said Sarah Warbelow, legal director of the Human Rights Campaign. In the states that protect transgender rights, the general approach is to let individuals decide for themselves their gender identity. That’s also how the Obama guidance viewed gender identity for students who are too young for reassignment surgery.
Just one state, North Carolina, has enacted a law restricting access to bathrooms in government-owned buildings to the sex that appears on a person’s birth certificate. But so far this year, lawmakers in more than 10 states are considering similar legislation, according to the National Conference of State Legislatures.