Yesterday (February 22), the Trump Administration withdrew guidance issued by the Departments of Education and Justice under President Obama related to protecting of transgender students in public schools. Often described as "bathroom guidance," the Obama directive went much further. It detailed the obligations of public schools to create a safe and nondiscriminatory environment under Title IX of the Education Amendments of 1972, which prohibits sex discrimination by institutions and programs receiving federal funds. These obligations included providing students with their choice of bathrooms, using pronouns consistent with a student’s gender identity and ensuring that students are not segregated by sex in classroom or athletic activities. The Obama directive has been blocked from implementation nationwide by a Texas federal court since August 2016.
In a letter sent to public schools from the Departments of Education and Justice yesterday, the Trump Administration rescinded the Obama guidance. The letter states that the Obama directive has created confusion, spawned legal challenges, and did not undergo a proper vetting process. In addition, the letter indicates that states and local school districts should have the primary role of developing educational policy. While the Trump Administration’s letter does not provide specific guidance for transgender students, it reiterates the obligation of schools to ensure that “… all students, including LGBT students, are able to learn and thrive in a safe environment.”
The Congressional LGBT Equality Caucus condemned the reversal of the Obama Administration’s transgender guidance, while also reminding the public that courts have consistently protected the rights of transgender students under Title IX. Said Roddy Flynn, executive director of the caucus, in the statement:
While Title IX still protects transgender students without this guidance, its rescission will make life much harder for transgender students who are seeking access to school facilities. The rescission also sends a message that the needs and concerns of transgender students are irrelevant and may encourage school administrators, staff, and students to bully and discriminate against transgender students.
Last night, people gathered in front of the White House for a rally to protest Trump’s decision. Mara Keisling, executive director of the National Center for Transgender Equality, noted in a statement:
This Administration’s action sends a harmful message to transgender young people—that their government does not support them, and that it is fine to single out those who are different. That message is sure to empower bullies. But it does not change the legal and moral duty of schools to support all students. That’s why the nation’s education leaders and more and more schools in every part of the country are supporting transgender students, and that won’t change. Transgender students are not going away. We call on every principal, teacher, school counselor and nurse, and every parent, family member and student across the country to stand by them.
Joining the White House rally was Gavin Grimm, a transgender teen whose high school in Gloucester County, Virginia, denied him access to the boys’ bathroom. Grimm sued, claiming that the school board violated his rights under Title IX. His case—heard by the Supreme Court on March 28—might be a bellwether for transgender rights in the nation.