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White House spokesman Sean Spicer confirmed that the Trump administration will walk back guidance given to school districts last year regarding the ability of transgender students to access restrooms and other intimate spaces that match their gender identity. The new guidance is expected to be issued later today.
According to U.S. News & World Report, U.S. Attorney General Jeff Sessions and U.S. Secretary of Education Betsy DeVos are expected to rescind the Obama-era guidance by sending around a “Dear Colleague” letter to public schools informing them that they are no longer required to permit transgender students to dress or behave in ways, or access restrooms, changing rooms or other facilities, that don’t match their biological sex at birth.
An alleged draft of that “Dear Colleague” letter, obtained by NBC News, informs teachers and administrators that the Trump administration is rescinding last year’s guidance, which the letter says has “given rise to significant litigation regarding school restrooms and locker rooms.”
The letter also references, though not by name, the pending Supreme Court arguments in the case of Gloucester County School Board v. G.G., which is expected to resolve the question of whether Title IX’s prohibitions on sex discrimination apply to transgender students. And it notes that a federal judge in Texas has enjoined the federal government from enforcing last year’s guidance, taking the interpretation that “sex” discrimination only refers to instances where a student is treated unfairly because of their biological sex.
“Please note that the withdrawal of these guidance documents does not diminish the protections from bullying and harassment that are available to all students,” the letter reads. “Schools must ensure that transgender students, like all students, are able to learn in a safe environment.”
The letter says nothing about those school districts that had adopted transgender-friendly policies prior to the Obama administration’s guidance, meaning they will be allowed to keep those policies in place as the Grimm case works its ways through the courts. Additionally, even though the DOJ and Department of Education will no longer supporting allowing transgender students to use facilities matching their gender identity, students who feel they are being discriminated against will still be able to sue under Title IX until the Supreme Court issues a final decision.
Regarding a New York Times article alleging that DeVos and Sessions had argued about issuing the new guidance, with DeVos reluctant to sign off on the move, Spicer said there was “no daylight” between the two, attributing any disagreement between them to the timing or wording, not the content, of the order.
In the press briefing, Spicer also insisted that the administration is not prioritizing stripping away transgender rights, but is being “forced” to address the issue because of the Grimm case heading to the Supreme Court.
“There is a case pending in the Supreme Court in which we have to decide whether or not to continue issuing guidance to the court,” Spicer said. “We now have to decide whether or not this administration wants to continue that track they were on.
“There are problems both in the process and legal way that guidance was issued,” he continued. “And so it’s incumbent upon us to actually follow the law, and to recognize that Title IX never talked about [transgender rights]. It was enacted in 1972. There was no discussion of this back then. And to assume certain elements of the law were thought of back then with respect to this would be completely preposterous.”
LGBTQ advocates are understandably horrified by the decision to walk back the protections that were extended to transgender students under the Obama-era interpretation of Title IX.
“What could possibly motivate a blind and cruel attack on young children like this?” Chad Griffin, the president of the Human Rights Campaign, said in a statement. “These transgender students simply want to go to school in the morning without fear of discrimination or harassment. The consequences of this decision will no doubt be heartbreaking.
“This isn’t a ‘states rights’ issue, it’s a civil rights issue,” Griffin added, referring to comments from Spicer at a Tuesday afternoon press briefing. In that briefing, Spicer said the Trump administration feels decisions on transgender restroom access and other related issues are best left up to state or local boards of education and individual school districts.
“Children deserve protection from bullying no matter what state they live in. Period. The policies included in the rescinded guidance have existed in cities, states, and school districts — from Minneapolis to Fort Worth — for years, seamlessly and successfully affirming and welcoming transgender students in thousands of classrooms throughout the country. Every transgender student should know that, no matter what Donald Trump does or says, there are millions of people who will fight to stand up for them. We are proud to be among them.”
Katharine Prescott, a mother whose transgender son Kyler committed suicide after facing discrimination at his school, also lamented the loss of the protections that the Obama administration’s “life-saving” guidance had ensured for students like her son.
“Kyler was victimized daily by teachers, administrators, and peers who did not understand his gender identity and by a school that did not do what was needed to protect him,” Prescott said in a statement. “I could support and protect him at home, but not in school. I would welcome the chance to share my story with Secretary DeVos and Attorney General Sessions to help them understand the real-life implications of reversing the Title IX guidance for protecting transgender students.”