UPDATE, February 23, 9:45 a.m.: The Department of Justice and the Department of Education on Wednesday evening issued a joint directive reversing President Obama’s protections for transgender students. The discriminatory move came as transgender students, including Gavin Grimm, along with advocacy groups and supporters, wrapped up a rally in front of the White House. “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,” Mara Keisling, executive director of the National Center for Transgender Equality, said in a statement. “But it does not change the legal and moral duty of schools to support all students.”
The Trump administration is poised to undermine Obama-era guidance advising public schools to allow transgender students to use bathrooms that align with their gender identity.
White House Press Secretary Sean Spicer told reporters at a Tuesday afternoon press briefing that the U.S. Department of Education and the U.S. Department of Justice (DOJ) are addressing the issue.
“I think that there will be further guidance coming from DOJ in particular with respect to not just the executive order but also the case that’s in front of the Supreme Court,” Spicer said, evidently mischaracterizing President Obama’s guidance as an executive order. The case to which Spicer referred is that of Gavin Grimm, a transgender student who sued his school board in Virginia after a rule change mandated students use restrooms that align with their biological sex rather than their gender identity.
Spicer indicated that President Trump will support discriminatory action against transgender students despite the White House in January boasting that Trump was an ally for upholding a handful of LGBTQ protections.
“The President has maintained for a long time that this is a states’ rights issue and not one for the federal government,” Spicer said. “So while we have further guidance coming out on this, 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.”
Though the Obama administration’s transgender student protections lacked the force of law or an executive order, they came at a time when Republicans upped attacks on transgender people’s rights on the state level. The former administration’s “significant guidance” tried to stem the tide, clarifying that Title IX, the federal law prohibiting sex discrimination at schools that receive federal funding, includes discrimination on the basis of gender identity. Doing so was consistent with federal court and administrative agency rulings in similar contexts that happened prior to the guidance.
“The Title IX guidance, widely hailed by educational and child health experts, made clear that transgender students are protected from discrimination and must be treated according to their gender identities,” Mara Keisling, executive director of the National Center for Transgender Equality, said in a statement.
“Should the Administration rescind the guidance, trans students would still be protected under Title IX. But 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,” she continued. “So we will fight for and with them.”
Such discriminatory action was not unexpected with Secretary of Education Betsy DeVos and Attorney General Jeff Sessions filling out Trump’s cabinet. GOP mega-donor DeVos and her family have donated millions to organizations that oppose LGBTQ equality and support conversion therapy, even though she claimed during her U.S. Senate confirmation hearing to believe “in the innate value of every single human being and that all students, no matter their age, should be able to attend a school and feel safe and be free of discrimination.”
Sessions, known for his fierce opposition to LGBTQ rights, more explicitly foreshadowed the Trump administration’s move.
Sessions on his second day as head of DOJ intervened in a federal lawsuit that 11 states brought against the Obama administration to block the Title IX guidance. Another ten states subsequently sued in a different jurisdiction. Sessions withdrew the Obama administration’s request to limit the court order blocking enforcement of the guidance nationwide to only those public schools in states that originally sued against the order.
Sessions and the DOJ then filed a joint request alongside the states challenging the rule, asking the U.S. Court of Appeals for the Fifth Circuit to remove the case’s oral arguments from its calendar. The request noted that all parties were “currently considering how best to proceed in the appeal.”