By Moriah Balingit, Emma Brown and Sandhya Somashekhar
The Washington Post
The Trump administration plans to roll back protections for transgender students and is preparing changes to federal guidance that required the nation’s public schools to allow students to use the bathrooms and locker rooms that matched their gender identities.
A White House spokesman said Tuesday that the Education and Justice departments would soon issue new guidance on the matter. He hinted that it would be different from the Obama administration’s position, which was that denying transgender students the right to use the bathroom of their choice violates federal prohibitions against sex discrimination.
“I think that all you have to do is look at what the president’s view has been for a long time, that this is not something that the federal government should be involved in, this is a states’ rights issue,” spokesman Sean Spicer told reporters at a daily media briefing Tuesday afternoon.
Should the Trump administration reverse the existing transgender guidance, it would be a significant setback for the gay rights movement, which made enormous gains under President Barack Obama, winning the right to marry and gaining the ability to serve openly in the military. It suggests that President Trump, who had signaled during the campaign and in the early days of his presidency that he supports gay and transgender rights, will hew closer to the GOP party line.
The decision would not have an immediate impact on the nation’s public school students because a federal judge had already put a hold on the Obama-era directive issued in May. That directive told schools that students must be permitted to use facilities that corresponded with their gender identity rather than the sex listed on their birth certificates.
But it would instantly affect several legal cases, including that of Gavin Grimm, a transgender Virginia teen who sued his school board for barring him from using the boys’ bathroom. The U.S. Supreme Court is scheduled to hear oral arguments in Grimm’s case next month.
A lower court ruled in favor of Grimm based on the Obama administration’s position on transgender student bathroom use. As a result, the change would at least partially undermine Grimm’s case.
Gay rights groups, which expected the Trump administration to change course from the earlier transgender guidance, condemned the move preemptively.
“Such clear action directed at children would be a brazen and shameless attack on hundreds of thousands of young Americans who must already defend themselves against schoolyard bullies, but are ill-equipped to fight bullies on the floors of their state legislatures and in the White House,” Mara Keisling, executive director of the National Center for Transgender Equality, said in a statement Tuesday.
The Obama administration’s guidance was based on the position that requiring students to use a restroom that clashes with their gender identity is a violation of Title IX, the federal law that bars sex discrimination in public schools. Transgender students and their parents cheered Obama’s move to expand the protections, but it drew legal challenges from those who believe it was a federal intrusion into local affairs and a violation of social norms.
The issue of which bathrooms transgender people should be permitted to use has evolved in recent years into a central debate about rights for lesbian, gay, bisexual and transgender people. Transgender advocates say that allowing people with gender dysphoria to use their preferred restroom is essential for their health and psychological well-being. Opponents say the accommodations violate student privacy and traditional values.
Many legal experts say that federal law protects transgender students no matter what agency guidance says.
“This administration cannot strip away the rights of transgender students by retracting the guidance – the issue is before the courts now and the law has not changed,” said Vanita Gupta, who worked as the head of civil rights for the Justice Department in the Obama administration and issued the original 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.”
It is unusual for a new administration to overturn such significant civil rights guidance, according to advocates who closely track the issue. And such a reversal is likely to leave schools confused about how to proceed, they say; Obama administration officials said that they developed the transgender guidance in response to requests from school officials.
“Schools repeatedly asked for guidance on how to support transgender students and create a safe and inclusive learning environment for all,” said Anurima Bhargava, who helmed the educational opportunities section of Justice Department’s civil rights division under Obama. “The guidance has been, and will continue to be, an important and practical resource for schools.”
Nearly 800 parents of transgender students wrote to President Trump last week, urging him to keep the guidance to protect their children from discrimination.
“No young person should wake up in the morning fearful of the school day ahead,” the parents wrote. “When this guidance was issued last year, it provided our families – and other families like our own across the country – with the knowledge and security that our government was determined to protect our children from bullying and discrimination. Please do not take that away from us.”
The Obama administration’s directive, issued in May, sparked immediate backlash from those who saw it as a gross overreach of executive power, and several states sued in response.
Texas Lt. Gov Dan Patrick (R) has been one of the most vociferous opponents of the Obama guidance, calling it “blackmail” and the most important issue for families in schools since the Supreme Court ruled against school-sponsored prayer.
In January, Patrick joined Texas Republicans in supporting a bill that would require the state’s transgender residents to use bathrooms and locker rooms corresponding to their biological sex, not their gender identity. He said the legislation was necessary to protect Texans’ privacy, including in public schools.
“We know it’s going to be a tough fight,” Patrick said at the time, according to the Texas Tribune. “But we know we’re on the right side of the issue. We’re on the right side of history. You can mark today as the day Texas is drawing a line in the sand and saying no.”
In an interview in May with The Washington Post, Donald Trump, then the presumptive Republican presidential nomination, said he thought that the government should protect transgender people but that it should be up to the states to decide on the bathroom issue.
“I think it’s something where we have to help people – and hopefully the states will make the right decisions,” Trump said in the interview.
Attorney General Jeff Sessions has been a longtime opponent of broadening LGBT rights. While in the U.S. Senate, he endorsed a constitutional amendment banning same-sex marriage and opposed expanding hate crime legislation to include acts against gay and transgender people.
Education Secretary Betsy DeVos, who was narrowly confirmed this month after a contentious hearing, has a more nuanced record on gay rights. By reversing course on the transgender issue, she could again find herself mired in controversy at the outset of her tenure.
DeVos has been accused of hostility to LGBT rights because of her extended family’s donations to socially conservative advocacy groups and efforts to ban same-sex marriage. She has tried to distance herself from her family’s position; in 2004, for example, she and her husband did not contribute to a ballot initiative to ban same-sex marriage in their home state of Michigan, though several of their relatives did.
At her confirmation hearing, she asked senators not to confuse her record with that of her family: “I embrace equality, and I firmly believe in the intrinsic value of each individual, and that every student should have the assurance of a safe and discrimination-free place to become educated,” she said at the time. A week later, a spokesman for the DeVos family told BuzzFeed News that DeVos supports same-sex marriage.
But she never said she was committed to upholding the Obama administration’s guidance on transgender students, writing in response to a question from Sen. Tammy Baldwin (D-Wis.) that she would “carefully review the law and all existing documents that are in effect on Title IX to ensure that the Department is faithfully implementing the law as intended.”
Some states and local governments already had been pushing back against the Obama administration’s stance on transgender accommodations, and the Trump administration’s reversal is likely to give oxygen to that resistance.
In the Chicago suburb of Palatine, Ill., for example, the community was divided when the school board decided in late 2015 to allow a transgender girl to change in the girls’ locker room. Now, three candidates are running for school board promising to reverse that policy “for the privacy and well-being of all children,” according to their website.
Others in the community support transgender accommodations in Palatine’s public schools, and they fear that the Trump administration’s reversal paves the way for discrimination against transgender students.
“The guidance at a federal level for transgender students is essential,” said Lindsay Christensen, a Palatine parent. “Thankfully Illinois has strong anti-discrimination laws to contend with if federal law fails. I worry about people in other states that may be left without much protection at all if the guidance is rescinded.”
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