The Trump administration rescinds an Obama-era guidance on transgender bathroom use in public schools, saying such matters are better left to local school boards that to the federal Education Dept. (DoEd).
The announcement is a significant victory for opponents of the Obama administration’s guidelines who believe the federal government should never have gotten involved in the issue. Civil rights groups, meanwhile, decried the move as an attack on transgender children that denies them equal rights.
In a two-page “Dear Colleague” letter to public schools, the Trump administration said the existing guidance did not “contain extensive legal analysis or explain how the position is consistent with the express language of Title IX, nor did they undergo any formal public process.”
The letter — which does not offer new guidance but simply withdraws the Obama administration policy — says there must be “due regard” for the role of states and local school districts in shaping education policy in schools.
The letter overturns an interpretation from the Obama administration departments of Justice and Education which told public school districts and colleges that receive federal funding that it interprets “sex discrimination” under Title IX, a federal law that bans sex discrimination in schools, to include claims based on gender identity.
The Obama administration guidance, published in May 2016, directed public schools to allow students to use the restroom matching their gender identity. The joint guidance stated that requiring transgender students to use the restrooms and locker rooms based on their sex at birth violates Title IX of the Education Amendments of 1972, the federal law that prohibits discrimination based on sex in educational programs or activities. The guidance also provided that publicly disclosing a transgender student’s birth name or biological sex violates the Family Educational Rights and Privacy Act of 1974 (FERPA), and that schools must change a student’s gender on school records when asked by a parent, without requiring production of medical records or a birth certificate.
Revoking this guidance may have a substantial impact on the current case before the United States Supreme Court regarding transgender students, Grimm v. Gloucester County School Board. In Gloucester, the Supreme Court granted certiorari to determine whether the court should defer to an agency’s letter that does not carry the force of law, and whether the Department of Education’s interpretation of Title IX should be given effect by courts. Because the underlying guidance was revoked, the Supreme Court may determine that the issue is now moot and dismiss the case.
If the Supreme Court dismisses the case, schools could look to local binding precedent for direction. The Sixth Circuit recently ruled in favor of a transgender student in a preliminary injunction ruling regarding the student’s right to use a bathroom based on their gender identity in Highland Local School District. In that ruling, the Sixth Circuit stated that sex stereotyping based on gender nonconformity—which includes transgender status—is impermissible discrimination. However, this was merely a preliminary injunction ruling, and the Sixth Circuit has not yet ruled on the merits of the case. The Sixth Circuit was awaiting the Supreme Court’s decision in Gloucester to provide binding guidance to resolve Highland, but if the Supreme Court does not issue a decision in Gloucester, the Sixth Circuit will have to rule on the merits of the Highland case.