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 on 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 news conference 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 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, National Center for Transgender Equality, said in a statement on 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 LGBT rights. 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.
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 DOJ’s civil rights division under Obama. “The guidance has been, and will continue to be, an important and practical resource for schools.”