Just a Matter of Time

Ending guidance from the Obama administration, Trump’s new policy aims to allow states to establish their own rules for transgender students in some settings — such as requiring transgender boys to use the girls restroom — without objection from the federal government.

The Trump administration on Wednesday issued new guidelines that roll back an Obama administration policy that had been designed to reduce anti-transgender discrimination in public schools.

In issuing new school guidance, the Department of Justice and Department of Education sent a letter to public schools that said the departments “have decided to withdraw and rescind the above-referenced guidance documents in order to further and more completely consider the legal issues involved. The Departments thus will not rely on the views expressed within them.”

“Please note that this withdrawal of these guidance documents does not leave students without protections from discrimination, bullying, or harassment.”

Originally issued last May, the Obama-era guidance told schools they “must not treat a transgender student differently from the way it treats other students of the same gender identity.” While that was not a new position for the government under Obama, it was the most explicit interpretation of existing law, concluding that transgender students must be allowed access to gender-appropriate restrooms and locker rooms.

The government said at the time that Title IX of the Education Amendments of 1972, which bans sex discrimination in public schools, also bans transgender discrimination as a form of sex discrimination, and warned that schools breaking the rules could lose federal funding.

Despite the federal government’s position, states and local school districts could adopt their own transgender-inclusive rules — and those with existing rules will remain in place. Trump’s latest guidance also does not block individuals or advocacy groups from raising their own complaints in federal court that a transgender student’s rights have been violated.

James Esseks, who oversees the ACLU’s litigation on behalf of a transgender student in Virginia, told reporters on a call Tuesday, “Courts enforce Title IX and courts at the end of the day decide what the scope of Title IX is.”

Withdrawing the guidelines was widely expected, given Trump’s nod to state’s rights on the campaign trail, and Press Secretary Sean Spicer announcing that a new policy was imminent. The new guidance also dovetails with the Justice Department’s decision this month to step away from defending the guidance in a federal appeals court.

Still, a fight broke out between factions of the Trump administration, when US Attorney Jeff Sessions pressed to reverse the guidance and ran up against Education Secretary Betsy DeVos, according to a New York Times report on Wednesday.

Both of their agencies, the Justice Department and Education Department, which issued the guidance last year, had to concur on any new guidance. Citing three Republicans with direct knowledge of the internal discussions as sources, the Times said Trump sided with Sessions after a meeting in the Oval Office, leading DeVos to capitulate.

At a White House Press briefing, however, Spicer played down those fractures Wednesday afternoon, noting that “there’s no daylight between anybody between the president, between any of the secretaries” and said DeVos was on board “100%.” While officials considered legal and procedural issues, he said, “where you might be hearing something” relates to timing and wording of the new guidance.

Spokespeople for the agencies did not respond to inquires about the new policy on Wednesday.

Overriding the old guidelines will likely have little short-term impact on schools — the old guidelines were suspended by a federal court last summer. Most immediately, the move could neutralize lawsuits from more than a dozen states that had challenged the policy and could be a factor in a case scheduled before the Supreme Court next month.

The new guidance was submitted to the Supreme Court on Wednesday night as an attachment to a letter announcing the move in that case.