Trump Administration Rescinds Obama-Era Guidance on Transgender Students

[Updated (2/22/2017, 11 p.m.) with additional details.]

The Trump administration withdrew Obama-era guidance late Wednesday on the rights of transgender students, to allow the Education and Justice Departments to “further and more completely consider” the controversial issue.

In a “Dear Colleague” letter, the departments said they were dropping the earlier guidance, which cited Title IX as the basis for requiring public-school districts to allow transgender students to use restrooms that match the gender with which they identify. That guidance was expressed in letters sent by Obama administration officials in January 2015 and May 2016.

The new letter, however, says the earlier documents do not “contain extensive legal analysis or explain how the position is consistent with the express language of Title IX.” The letter also says the Obama administration’s guidance was issued without undergoing a formal public review.

The earlier guidance was issued at a time of growing controversy over which restrooms and locker rooms transgender students were permitted to use. A lawsuit stemming from that controversy is due to be heard next month by the U.S. Supreme Court, and in a separate letter on Wednesday the Justice Department informed the court that it had withdrawn the Obama guidance. A separate but related dispute has ensnared the University of North Carolina system and a state law, HB 2, that the Obama administration had sued to block.

In lieu of the guidance, the Justice and Education Departments said, “there must be due regard for the primary role of the states and local school districts in establishing educational policy.”

The letter stated, however, that transgender students remained protected from “discrimination, bullying, or harassment” under Title IX. The two departments said they remain “committed to the application of Title IX and other federal laws to ensure such protection.”

In a written statement, Education Secretary Betsy DeVos said that her department’s “Office for Civil Rights remains committed to investigating all claims of discrimination, bullying, and harassment against those who are most vulnerable in our schools.” She also wrote: “I consider protecting all students, including LGBTQ students, not only a key priority for the department, but for every school in America.”

The New York Times reported that Ms. DeVos had argued against withdrawing the guidance — her first major decision as education secretary — because she was “uncomfortable” with “the potential harm that rescinding the protections could cause transgender students.” She also resisted signing the letter, according to the Times, which cited “three Republicans with direct knowledge of the internal discussions” as its sources.

But Attorney General Jeff Sessions insisted on dropping the guidance, in part because of its implications for continuing litigation, and President Trump sided with him, the Times reported.

A coalition of civil-rights and human-rights groups condemned the letter from the Education and Justice Departments. In a written statement, the groups declared that the withdrawal of the Obama-era guidance had moved the power of the law from supporting the rights of transgender students to opposing them.

The letter sends “a deeply troubling message to students that the administration will not stand up for students’ civil rights,” the statement says. “We condemn the administration’s decision, vow to fight to enforce Title IX, which continues to protect transgender students, and call on individual schools and districts to treat students consistent with their gender identity and consistent with the rescinded guidance that accurately explained the law.”

Genny Beemyn, director of the Stonewall Center at the University of Massachusetts at Amherst and coordinator of the Trans Policy Clearinghouse at Campus Pride, said that even though the Trump administration was withdrawing the earlier guidance, colleges could still step up their protections of transgender rights. “There’s nothing that prevents colleges from putting in place all of the suggestions” in the Obama administration’s guidance, said Beemyn, who prefers not to use gender-specific titles.

Beemyn added that the Trump administration’s moves had created “a much more ambiguous situation going forward,” with transgender protections at the college level probably being decided institution by institution. “So you’re going to have a whole range of how institutions are supporting or choosing not to support their transgender students on this,” Beemyn said. “It’s going to be much more of a free-for-all. And I think you’re going to see many more efforts to repeal state laws that protect trans people on the basis of gender identity.”

Lee Gardner contributed to this article.

Correction (2/23/2017, 12:06 p.m.): This post previously described incorrectly what the Obama administration’s guidance called for. The guidance required public schools to allow transgender students to use restrooms that match the gender with which they identify, not that match the gender on their birth certificates. The post has been updated to reflect this correction.

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