Trump administration rescinds guidelines on protections for transgender students

Questions about transgender students are best “solved at the state and local level,” Education Secretary Betsy DeVos said.

By Michael A. Memoli

Tribune Washington Bureau

WASHINGTON, D.C. — The Trump administration rescinded an Obama-era directive Wednesday aimed at preventing discrimination against transgender students, questioning its legal grounding.

In a joint statement, officials from the departments Education and Justice said that the Obama administration failed to make its case that students’ gender identities were protected under Title IX requirements forbidding federally funded schools from discriminating on the basis of sex. They cited “significant litigation” spurred by the policy.

Under the old guidelines, schools were required to treat transgender students according to their stated gender identity, and allow either access to restrooms and locker rooms for the gender they identify with or provide private facilities if requested.

The White House, in previewing the action, cast the change as consistent with President Donald Trump’s belief in states’ rights. Local and state governments as well as Congress could adopt “appropriate policies or laws” to address discrimination, bullying and harassment of LGBTQ students, Attorney General Jeff Sessions said in a statement.

Questions about transgender students are best “solved at the state and local level,” Education Secretary Betsy DeVos said. She noted that the change wouldn’t immediately affect students because the Obama administration guidance was blocked by a Texas court order in August.

The Obama administration had contended that its guidance did not constitute new federal regulations or requirements, but simply represented its interpretation of existing law in response to requests for clarity from school districts and state education agencies.

Implementation of the guidance was uneven; it was challenged in court and judges had varying interpretations.

Catherine Lhamon, who headed the Education Department’s Office for Civil Rights under Obama, criticized the Trump administration changes.

“It’s devastating to visit harm on students who are relying on the federal government,” she said.

Rescinding the guidance will create confusion instead of clarifying the law, she added, arguing that even once it was blocked, the guidance empowered school boards to pass policies that allowed transgender students to use the bathrooms of their choice.

“It’s out of step with what the law demands,” said Lhamon, who now chairs the U.S. Commission on Civil Rights. “It disregards the students who are required to be in school every day. It turns its back on educators who have asked for information on how to do what’s right.”

The Trump administration’s move could scuttle a Supreme Court case to be heard next month in which a transgender boy, Gavin Grimm, is seeking to use the men’s room in his Virginia high school.

He won before the U.S. appeals court in Richmond, Va., which cited the guidance letter issued by Obama administration lawyers. But on Oct. 28, less than two weeks before the presidential election, the Supreme Court agreed to hear the school board’s appeal of the ruling in favor of the transgender student.

As lawyers for Gloucester School Board pointed out, the 1972 law did not forbid all sex-based policies. For example, schools may maintain separate sports teams for women and men. And government regulations say they also may have “separate toilet, locker rooms and shower facilities on the basis of sex.”

The justices said they would rule on the validity of the Education Department’s policy and on whether the 1972 law protects transgender students from discrimination. The case is scheduled to be argued before the eight justices on March 28.

The justices could decide to step aside for now and send the case back to the appeals court to reconsider its ruling because it was based on the Obama administration policy. Or they may press ahead and seek to rule broadly on whether the 1972 law forbids discrimination against students like Grimm.

It is also possible that after hearing arguments, they split 4-4, leaving the outcome in doubt until the arrival of a ninth justice.

In previewing the announcement Wednesday, Spicer noted that the guidance had not yet been fully implemented, for legal and procedural reasons. The aim of the change was to respect states’ determinations.

“The president … is a firm believer in states’ rights,” Spicer said.

Spicer also denied a New York Times report that Education Secretary Betsy DeVos was reluctant to sign off on the change.

“There is no daylight between anybody, between the president, between any of the secretaries,” he said. “I think there’s been some discussion between the timing of the issuance and recommendations or between the exact wording.”

In California, state law forbids discriminating against students based on gender identity or gender expression.

The National Association of Secondary School Principals, which had formally requested the guidance ultimately offered by the Obama administration last year, criticized Trump’s reported plans. “If the guidance is withdrawn, principals will continue their efforts to support transgender and all other students in the face of new opposition and, sadly, with the knowledge that their president might not share their concern for the needs of each student,” Bob Farrace, the organization’s director of public affairs, said in a statement.