The Trump administration has revoked a vague Obama administration order forcing taxpayer-funded schools to allow transgender students to use the bathrooms and locker rooms of their choice.
Two federal agencies, the Department of Justice and the Department of Education, jointly issued new administrative guidance withdrawing the Obama order early Wednesday evening.
The new guidance comes in the form of a letter. The Trump administration will now “further and more completely consider” the vexing issue of who can use which toilets in public schools, the letter indicates.
White House press secretary Sean Spicer suggested on Tuesday that President Trump would abandon Obama’s transgender-bathroom mandate.
“This is a states’ rights issue and not one for the federal government,” Spicer informed reporters, according to The New York Times.
The Obama administration guidance, sent in May 2016, instructed public school districts across the country to allow transgender students to choose bathrooms and shower stalls consistent with their gender identity, not their biological features.
“A school’s failure to treat students consistent with their gender identity may create or contribute to a hostile environment in violation of Title IX,” the guidance said, in reference to the 1972 federal law banning discrimination on the basis of biological sex in education.
Transgender enthusiasts are not happy.
“There is no legal basis for this shift in federal policy, which is driven by the anti-LGBT agenda of Vice President Pence and Attorney General Sessions,” said Kate Kendell, director of the National Center for Lesbian Rights, in a statement sent to The Daily Caller.
“We will not let Jeff Sessions and Mike Pence, two of the most openly anti-LGBT public officials in our nation’s history, erase the gains we have made,” Kendall also said.
The Gay, Lesbian and Straight Education Network also issued a statement asserting that “transgender students who are allowed simply to be themselves at school are as healthy and happy and successful as their peers.”
A few hundred protesters gathered outside the White House on Wednesday evening to protest the decision to do away with the Obama guidance, which has proven deeply unpopular among conservatives.
The protesters waved rainbow flags. “No hate, no fear, trans students are welcome here,” they chanted, according to Reuters.
Earlier this month, just one day after Jeff Sessions was sworn as Trump’s attorney general, the U.S. Department of Justice sought permission to delay a hearing on a motion — filed last year — asking federal district judge Reed O’Connor to ease a preliminary injunction striking down the Obama administration guidance on bathroom and shower use in public schools.
The preliminary injunction, entered in August, stems from a 2016 lawsuit filed by the state of Texas in response to the Obama administration’s transgender bathrooms directive. A dozen states have joined the suit, setting the stage for what once appeared to loom as a legal battle that could have huge implications for transgender legal issues.
The suing states accused the agencies of issuing the guidelines by means of regulatory “dark matter,” a deluge of agency directives, notices, memoranda, guidance documents, and even blog posts which effectively create new policy without congressional legislation or Administrative Procedure Act (APA) protocols. The states claim that this strategy allows agencies to evade judicial review and achieve their policy objectives.
Judge O’Connor, an appointee of George W. Bush, wrote in the preliminary injunction that Title IX “is not ambiguous” concerning “the biological and anatomical differences between male and female students as determined at their birth.”
Next month, the U.S. Supreme Court is scheduled to hear a case involving a female Virginia high school student, Gavin Grimm, who insists on using boys’ bathrooms and locker rooms despite the fact that she is a girl.
Grimm’s saga dates back to 2014 when the school board in Gloucester County, Virginia refused to allow her to use boys’ bathrooms and locker rooms. The school board chairman at the time, George Burak, observed that other students use bathrooms and locker rooms in addition to Grimm.
To placate Grimm, now 17, the school district paid to build a number of unisex, single-person bathrooms for all students — including Grimm — to use. Grimm was unsatisfied. With the help of the American Civil Liberties Union, she and her parents sued the school district under Title IX.
A lower court order — currently stayed — had directed the Gloucester County school district to allow Grimm to use boys’ bathrooms.