Updated February 22: The Education and Justice Departments officially rescinded the guidance Wednesday evening. The departments' "Dear Colleague" letter said the Obama administration's guidance didn't have a sufficient explanation for how Title IX also encompasses gender identity. The departments also said there should be "due regard for for the primary role of the states and local school districts in establishing educational policy."
The letter also reiterates that schools must ensure that LGBT students are "able to learn and thrive in a safe environment" free from discrimination, bullying, or harassment.
Education Secretary Betsy DeVos in a separate statement emphasized that the department's Office of Civil Rights remains committed to investigating claims of harassment.
"This is not merely a federal mandate, but a moral obligation no individual, school, district or state can abdicate," DeVos said. "I consider protecting all students, including LGBTQ students, not only a key priority for the department but for every school in America."
The Justice Department, through the solicitor general's office, also filed notice with the Supreme Court that the guidance is being withdrawn.
The Trump administration is ready to revoke federal guidance requiring schools to let transgender students use bathrooms and locker rooms that match their gender identity, a move that would have a big impact on a pending Supreme Court case.
White House Press Secretary Sean Spicer said Tuesday that President Donald Trump believes “this is a states’ rights issue and not one for the federal government.”
The Justice and Education departments are addressing the matter, and further guidance will be coming with respect to “the case that’s in front of the Supreme Court,” Spicer said.
Mara Keisling, director of the National Center for Transgender Equality, rejected the idea that protecting transgender students is a matter of states’ rights.
“It is simply and dangerously wrong and incorrect. Enforcing federal laws like Title IX and other civil rights laws are not state-by-state options — they are the responsibility of the federal government,” she said on a call Tuesday evening with reporters.
Transgender students have to face bullies at school every day, she said.
“Now they are facing adults like the attorney general of the United States, the secretary of education, and the president of the United States, who are taking actions that are simply harmful and dangerous to students,” she added.
Keisling and leaders of other advocacy groups on the call pledged to fight efforts to rescind the guidance and urged school districts not to roll back protections for transgender students should the Trump administration act.
The original guidance
is central to a Supreme Court case that pits transgender teenager Gavin Grimm against his Virginia school district.
The justices will consider two questions in the case, scheduled for oral arguments in five weeks. First, they’ll decide whether courts should defer to the Obama administration’s interpretation that Title IX, which bans discrimination in education on the basis of sex, also covers gender identity. Second, they’ll consider whether that interpretation of Title IX should stand regardless of whether it is current executive branch policy.
If the Trump administration revokes the guidance, the justices could decide that the first question is moot, experts said.
Arthur Leonard, a professor at the New York Law School, predicted that if justices find the first question is no longer an issue, they’ll send the case back to the Fourth Circuit in Richmond, Va.
Others, though, said the second, bigger constitutional question of whether Title IX protects transgender students would still be at issue.
“There’s still a legal question under Title IX, under the plain, explicit language, that prohibits schools from discriminating on the basis of sex, whether transgender students should be allowed to use the restroom of their choosing,” said Danielle Weatherby, an associate professor at the University of Arkansas School of Law.
The school district has already asked the court to consider the broader application of Title IX, and Grimm’s attorneys will do the same when they file briefs later this week, James Esseks, director of the ACLU’s LGBT & HIV Project, said on the call with reporters. The ACLU is representing Grimm.
“If the guidance goes away, the first question is mooted and disappears, but the court has already accepted review of the second question,” Esseks said.
The Supreme Court is scheduled to hear oral arguments in the case, Gloucester School District v. G.G., on March 28.
Grimm, who was born female but identifies as a boy, had used the boys’ restrooms at Gloucester High School without incident for a few months at the start of the 2014 school year before a group of parents and community members complained.
After a series of public meetings, the school board adopted a policy requiring transgender students to use a restroom in the nurse’s office or a newly installed single-stall restroom. Requiring Grimm to use single-stall facilities was stigmatizing and humiliating, he wrote in The Washington Post
“I realize now this is a lot bigger than myself, and my greater goal now is to try to make things better for the people that come after me. I can’t speak for everybody, but there’s things that need to be spoken about,” Grimm said in a video released by the ACLU
While it seems likely that revoking the guidance could affect the first part of the case, it’s less clear how the justices will decide the second question — whether Title IX includes gender identity — without the backing of the executive branch.
“I certainly think that G.G.’s case would have been stronger had there been administrative guidance kind of bolstering his position,” Weatherby said.
The high court doesn’t like to be considered an activist court, so the justices might not be willing to rule that gender identity has the same protections as biological sex if doing so would directly contradict the executive branch, she said.
Supreme Court nominee Neil Gorsuch will not be a factor in the case. His first hearing before the Senate Judiciary Committee is scheduled for March 20, so the Senate can’t complete the confirmation process in time for him to hear the Grimm case the following week.
Other cases could also be affected by the revocation of the guidance and ensuing court decision, Leonard said.
One is a suit the Obama administration filed against North Carolina over a law known as HB 2, which overturned local anti-discrimination ordinances and required transgender people to use facilities, including in public schools, that match the gender on their birth certificate. Another is a pending case from a dozen states that sued to block the Obama administration’s guidance.
“It’s a real puzzle to know how they’re going to deal with this, with so many moving parts,” Leonard said. “There are these cases around the country that all could be affected by how the Supreme Court treats this issue. We’ll read the entrails when we listen to the oral argument.”