Donald Trump’s administration appears poised to overturn a vague Obama administration order allowing transgender students in America’s taxpayer-funded schools to use the bathrooms and locker rooms of their choice.
White House press secretary Sean Spicer suggested on Tuesday that Trump will abandon Obama’s transgender-bathroom mandate and let states decide who can use which toilets.
“This is a states’ rights issue and not one for the federal government,” Spicer informed reporters, according to The New York Times.
Spicer’s statement about Trump’s policy is worlds apart from the Obama administration guidance, sent in May, which instructed public school districts across the country that they must 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 expressing deep concern about the possibility of a White House policy shift.
“To cloak this in federalism ignores the vital and historic role that federal law plays in ensuring that all children (including L.G.B.T. students) are able to attend school free from discrimination,” Vanita Gupta, Obama’s Justice Department civil rights division chief, told the Times in an email.
Mara Keisling, executive director of the National Center for Transgender Equality, also criticized the possible shift.
“I’m angry; I’m outraged,” Keisling told the Washington Blade, America’s oldest gay-specialty newspaper. “This is about kids who just want to go to school who just want to be themselves, and to hear the president a week or two ago talk about how supportive he is of LGBT people, it’s just outrageous that he’d go after trans kids this way.”
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 Obama’s 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 Congress — to 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.”
The Justice Department refused to comment on the motion to delay the hearing on the states’ lawsuit.
The Justice Department also refused to comment on Spicer’s Tuesday statement calling bathroom use an issue properly decided by state governments.
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.
At least one physician has diagnosed Grimm with gender dysphoria, which means that Grimm insists she is actually a boy even though she was born with and lived her whole life with female reproductive organs.
A lower court order — currently stayed — had directed the Gloucester County school district to allow Grimm to use boys’ bathrooms.
Sessions, Trump’s attorney general, spoke about how he would handle America’s continuing transgender bathroom kerfuffle during his Senate confirmation hearing.
“I understand the demands for justice and fairness made by our L.G.B.T. community,” Sessions said during the confirmation hearing, according to the Times. “I will ensure that the statutes protecting their civil rights and their safety are fully enforced.”
The Senate confirmed Sessions by a mostly-party-line vote of 52-47.
The Times takes care to note that Trump indicated during his presidential campaign that he would allow noted transgender reality show star Caitlyn Jenner to use whichever bathroom he wants to use inside Trump Tower.