Trump revokes Obama guidelines on transgender bathrooms

Supreme Court may have final say on whether Title IX, which bans sex discrimination in education, extends protections extend to a persons gender identity.

Jonathan Ernst—Reuters
Transgender activists and supporters protest the Trump administration's decision to revoke Obama administration guidance that allowed transgender public school students to use the bathroom of their choice

WASHINGTON, D.C. — The Trump administration announced this week that it will revoke Obama administration guidance that allowed transgender public school students to use the multi-stalled bathroom of their choice, rather than only using the one that matches their biological sex or using single-stalled ones as individual schools’ policies may permit. The announcement raised the stakes in N.C. and other states that are grappling with the boundaries of state, federal and municipal law as it pertains to separation in public restrooms along the line of biological sex. Former Presdient Barack Obama’s directive attempted to add “gender identity” and multi-stalled bathrooms to the list of groups protected under federal Title IX law, saying that separation of sexes in public bathrooms is discriminatory against those who identify with a gender other than their biological sex. In rolling that directive back, President Donald Trump treads into the tumultuous political and economic waters that N.C. has found itself in since passing H.B. 2 last year, a law that requires individuals to use the multi-stalled public bathrooms that match the sex listed on their birth certificate. Trump administration’s decision brought similar corporate criticism heaped on N.C., which included boycotts and canceling of sporting events and concerts through the summer. However, this time companies lacked the same opportunity to protest with their dollars, since the Trump administration action pertains to schools nationwide. “The action taken by the administration is troubling and goes against all that we believe in,” Yahoo said in a statement. In unveiling the new direction on Wednesday, Trump administration officials argued that transgender policies should be an issue for the states to decide. By invoking states’ rights, the Trump administration is potentially emboldening legislatures in other states that are considering laws similar to North Carolina’s H.B. 2. White House spokesman Sean Spicer told a news briefing, that “the president … is a firm believer in states’ rights” and the new administration had “several areas of concern, both legal and procedural.” Social conservatives have hailed the decision by the Justice and Education departments to defer transgender bathroom policies to the states, calling it a victory for privacy and traditional values. Conservatives such as Texas Attorney General Ken Paxton, who spearheaded the lawsuit challenging the Obama guidance, hailed the Trump administration action. “Our fight over the bathroom directive has always been about former President Obama’s attempt to bypass Congress and rewrite the laws to fit his political agenda for radical social change,” said Paxton, a Republican. The decision also puts an extra sharp focus on an upcoming U.S. Supreme Court case that could deliver a landmark decision on the issue. The eight justices are due to hear oral arguments on March 28 on whether the Gloucester County School Board in Virginia can block Gavin Grimm, a female-born transgender high school student, from using the boys’ bathroom. A ruling is due by the end of June. A key question in the case is whether a federal law, known as Title IX, which bars sex discrimination in education, covers transgender students. The Education Department under Obama said in guidance to public schools last May that it does, but the Republican Trump administration withdrew that finding on Wednesday. The high court on Thursday asked the lawyers involved to file letters by March 1 giving their views on how the Trump action should affect consideration of the case. Lawyers for Grimm say that the definition of sex discrimination in Title IX is broad and includes gender identity. The school board maintains that the law was enacted purely to address “physiological distinctions between men and women.” If the Supreme Court rules that Title IX protects transgender students, the decision would become the law of the land, binding the Trump administration and the states. “This is an incredibly urgent issue for Gavin and these other kids across the country,” said Joshua Block, a lawyer with the American Civil Liberties Union (ACLU) who represents Grimm. The Trump administration’s announcement “only underscores the need for the Supreme Court to bring some clarity here,” he added.