The Trump administration has rescinded Title IX protections for transgender students issued by the Obama administration last year. The decision comes one day after Alabama Senator Jeff Sessions was sworn in as Attorney General to head the Justice Department.
The decision also comes ahead of the pending Supreme Court Case, Gavin Grimm vs. Gloucester County School Board of VA, regarding the rights of transgender students in public schools to use the restroom or locker room facilities associated with the gender with which they identify.
A letter from the US Departments of Justice and Education, Civil Rights Divisions issued Wednesday states:
These guidance documents take the position that the prohibitions on discrimination “on the basis of sex” in Title IX of the Education Amendments of 1972 (Title IX) require access to sex-segregated facilities based on gender identity. These guidance documents do not, however, contain extensive legal analysis or explain how the position is consistent with the express language of Title IX, nor did they undergo any formal public process.
This interpretation has given rise to significant litigation regarding school restrooms and locker rooms. The U.S. Court of Appeals for the Fourth Circuit concluded that the term “sex” in the regulations is ambiguous and deferred to what the court characterized as the “novel” interpretation advanced in the guidance. By contrast, a federal district court in Texas held that the term “sex” unambiguously refers to biological sex and that, in any event, the guidance was “legislative and substantive” and thus formal rulemaking should have occurred prior to the adoption of any such policy. In August of 2016, the Texas court preliminarily enjoined enforcement of the interpretation, and that nationwide injunction has not been overturned.
In addition, the Departments believe that, in this context, there must be due regard for the primary role of the States and local school districts in establishing educational policy.
In these circumstances, the Department of Education and the Department of Justice have decided to withdraw and rescind the above-referenced guidance documents in order to further and more completely consider the legal issues involved. The Departments thus will not rely on the views expressed within them.
Lead counsel for Grimm and ACLU Senior Staff Attorney Joshua Block responded:
“While it’s disappointing to see the Trump administration revoke the guidance, the administration cannot change what Title IX means. When it decided to hear Gavin Grimm’s case, the Supreme Court said it would decide which interpretation of Title IX is correct, without taking any administration’s guidance into consideration. We’re confident that the law is on Gavin’s side and he will prevail just as he did in the Fourth Circuit.”
According to reports from the New York Times, newly appointed Education Secretary Betsy DeVos, was reluctant in going along with the decision. In her own letter on Wednesday, Devos said the administration has “a responsibility to protect every student in America and ensure that they have the freedom to learn and thrive in a safe and trusted environment. This is not merely a federal mandate, but a moral obligation no individual, school, district or state can abdicate. At my direction, the Department's Office for Civil Rights remains committed to investigating all claims of discrimination, bullying and harassment against those who are most vulnerable in our schools.”
In May 2016, the Obama administration had expanded and clarified their position on Title IX protections in the “Dear Colleague” letter on Transgender Students. A letter from then Education Secretary John B. King Jr. read:
“No student should ever have to go through the experience of feeling unwelcome at school or on a college campus," said Education Secretary John B. King Jr. in a letter from the Justice and Education Departments reasserting the administration's position on the issue.
“This guidance further clarifies what we’ve said repeatedly — that gender identity is protected under Title IX. Educators want to do the right thing for students, and many have reached out to us for guidance on how to follow the law. We must ensure that our young people know that whoever they are or wherever they come from, they have the opportunity to get a great education in an environment free from discrimination, harassment and violence.”
Opponents of the Obama administration’s decision argue that the issue should not have been a federal matter.
The protections were challenged by Texas Attorney General Ken Patton who sued, successfully, to pass a nationwide injunction to keep federal agencies from taking action against public schools not adhering to the guidelines.
The Justice Department under the Obama administration challenged the lawsuit and arguments were scheduled to be heard in February, CNN reports. But now, under the guidance of Attorney General Sessions, the Justice Department has dropped its challenge, deferring instead to states’ guidance on the issue.
White House Press Secretary Sean Spicer affirmed this stance saying, "The president has made it clear throughout the campaign that he's a firm believer in states' rights and that certain issues like this are not best dealt with at the federal level."
But civil rights activists say the issue will endanger transgender students, and further weaken the federal government’s position on civil rights.
American Civil Liberties Union LGBT Project Director James Esseks responded Wednesday:
Revoking the guidance shows that the president’s promise to protect LGBT rights was just empty rhetoric. But the bottom line is that this does not undo legal protections for trans students, and school districts can and must continue to protect them and all students from discrimination. School districts that recognize that should continue doing the right thing; for the rest, we’ll see them in court. We will continue to fight for the rights and dignity of transgender youth, especially now that the Trump administration has decided to turn its back on them.
Under the Obama administration, the DOJ sued North Carolina over its “bathroom bill” HB2, which restricts restroom use by transgender individuals to correspond with that of their assigned gender. North Carolina has lost contracts with several businesses and athletic organizations over the issue. States including Texas, Colorado, New Hampshire and others have considered or are considering similar laws, NPR reports.
The Williams Institute at the UCLA School of Law researches sexual and gender identity law and public policy and estimates that there are more than 350,000 transgender youth, ages 13 - 24 in the U.S. who could be affected.
Gavin Grimm’s case will be heard by the Supreme Court on March 28.