World / Crime & Legal

Kids seen in harm's way as Trump revokes Obama-era transgender bathroom protections

AP

The Trump administration on Wednesday ended federal protections for transgender students that instructed schools to allow them to use bathrooms and locker rooms matching their gender identities.

Stepping into an emotional national debate, the administration came down on the side of states’ rights, lifting federal guidelines that had been issued by the Obama administration and characterized by Republicans as a legal overreach.

Without the Obama directive, it will be up to states and school districts to interpret federal anti-discrimination law and determine whether students should have access to restrooms in accordance with their expressed gender identity and not just their biological sex.

“This is an issue best solved at the state and local level,” Education Secretary Betsy DeVos said. “Schools, communities and families can find — and in many cases have found — solutions that protect all students.”

In a letter to the nation’s schools, the Justice and Education departments said the earlier guidance “has given rise to significant litigation regarding school restrooms and locker rooms.”

The agencies withdrew the guidance to “in order to further and more completely consider the legal issues involved.”

Anti-bullying safeguards would not be affected by the change, according to the letter. “All schools must ensure that all students, including LGBT students, are able to learn and thrive in a safe environment,” it said.

It was not clear what immediate impact the change would have on schools, as a federal judge in Texas put a temporary hold on the Obama guidance soon after it was issued — after 13 states sued.

Even without that hold, the guidance carried no force of law. But transgender rights advocates say it was useful and necessary to protect students from discrimination. Opponents argued it was federal overreach and violated the safety and privacy of other students.

White House spokesman Sean Spicer said President Donald Trump “has made it clear throughout the campaign that he is a firm believer in states’ rights and that certain issues like this are not best dealt with at the federal level.”

Conservative activists hailed the change, saying the Obama directives were illegal and violated the rights of fixed-gender students, especially girls who did not feel safe changing clothes or using restrooms next to anatomical males.

“Our daughters should never be forced to share private, intimate spaces with male classmates, even if those young men are struggling with these issues,” said Vicki Wilson, a member of Students and Parents for Privacy. “It violates their right to privacy and harms their dignity.”

However, the reversal is a setback for transgender rights groups, which had been urging Trump to keep the guidelines in place. Advocates say federal law will still prohibit discrimination against students based on their gender or sexual orientation.

Still, they say lifting the Obama directive puts children in harm’s way.

“Reversing this guidance tells trans kids that it’s OK with the Trump administration and the Department of Education for them to be abused and harassed at school for being trans,” said American Federation of Teachers President Randi Weingarten.

Activists protested the move Wednesday outside the White House. “Respect existence or expect resistance,” read one placard.

Spicer denied media reports that DeVos, who has been criticized for her stance on LGBT issues, had opposed the change but was overruled by Attorney General Jeff Sessions. Spicer said any disagreement was merely over wording and timing.

“There is no daylight between anybody,” Spicer said, adding that DeVos was “100 percent” on board with the decision.

The Obama administration’s guidance was based on its determination that Title IX, the federal law prohibiting sex discrimination in education, also applies to gender identity.

The guidance did not sufficiently explain its interpretation of that law, Sessions said in a statement.

“Congress, state legislatures and local governments are in a position to adopt appropriate policies or laws addressing this issue,” he said.

Legal experts said the change in position could impact pending court cases involving the federal sex discrimination law, including a case to be heard by the Supreme Court in March involving Gavin Grimm, a transgender teen who was denied bathroom access in Virginia.

The justices could decide not to hear the case and direct lower courts to decide that issue.

In a phone interview with AP, Grimm said of the Trump action: “It’s not positive. It has the possibility of hurting transgender students and transgender people. We’re going to keep fighting like we have been and keep fighting for the right thing.”

A patchwork of state laws could continue to emerge as a result of the change. Fifteen states have explicit protections for transgender students in their state laws, and many individual school districts in other states have adopted policies that cover such students on the basis of their gender identity, said Sarah Warbelow, legal director of the Human Rights Campaign. Just one state, North Carolina, has enacted a law restricting access to bathrooms in government-owned buildings to the sex that appears on a person’s birth certificate. Lawmakers in more than 10 states are considering similar legislation, according to the National Conference of State Legislatures.

The Trump administration’s decision to revoke the guidelines was first reported by The Washington Post. The reversal would be a major setback for transgender rights groups, which had been urging Trump to keep the safeguards in place. Advocates said federal law will still prohibit discrimination against students based on their gender or sexual orientation. Still, they said, lifting the Obama directive puts children in harm’s way.

“By rescinding these protections, the Trump administration is compromising the safety and security of some of our most vulnerable children,” said American Federation of Teachers President Randi Weingarten. “Reversing this guidance tells trans kids that it’s OK with the Trump administration and the Department of Education for them to be abused and harassed at school for being trans.”

Conservative activists hailed the change, saying the directives were illegal and violated the rights of fixed gender students, especially girls who did not feel safe changing clothes or using restroom next to anatomical males.

“Our daughters should never be forced to share private, intimate spaces with male classmates, even if those young men are struggling with these issues,” said Vicki Wilson, a member of Students and Parents for Privacy. “It violates their right to privacy and harms their dignity.”

Legal experts said the change in position could impact pending court cases involving the federal sex discrimination law, including a case set to be heard by the Supreme Court in March, involving a transgender teen who was denied bathroom access in Virginia.

The justices could decide not to hear the case and direct lower courts to decide that issue.

Here’s a look at the issue and what could happen:

What is the federal guidance for schools?

About 150,000 young people — 0.7 percent of those between the ages of 13 and 17 — in the United States identify as transgender, according to a study by The Williams Institute at the UCLA School of Law.

The Obama administration last May told public schools to grant bathroom access even if a student’s chosen gender identity isn’t the same as what’s in their record. The Obama administration’s guidance was based on its determination that Title IX, the federal law prohibiting sex discrimination in education and activities, also applies to gender identity.

It held no force of law but sent a warning that schools could lose funding if they did not comply with the administration’s interpretation of the law. Republicans immediately pushed back, arguing it was an example of the Obama administration meddling in local matters.

Thirteen states sued to challenge the directive.

What could happen after the guidance is withdrawn?

The change in position will have no immediate impact, as a federal judge in Texas temporarily blocked the Obama guidance in August.

But it could have consequences for unresolved court cases dealing with Title IX.

They include a case set to be heard by the Supreme Court in March involving a transgender teen who was denied a choice of bathroom access in Virginia.

Courts are unsettled about whether, in the absence of guidance from the federal government, anti-discrimination laws require schools to allow students to use bathrooms and locker rooms based on their gender identity. The high court could decide not to hear the case and direct lower courts to decide that question instead.

Similar lawsuits are still playing out across the country.

What might the change mean for schools and students?

Even without the guidelines, advocates say federal law will still prohibit discrimination against students based on their gender or sexual orientation.

“To cloak this in federalism ignores the vital and historic role that federal law plays in ensuring that all children (including LGBT students) are able to attend school free from discrimination,” Vanita Gupta, who was head of the Justice Department’s Civil Rights Division when the guidance was issued, said in a statement.

Without the guidance, school districts could face new lawsuits as districts try to sort through the confusion, said Rachel Tiven, CEO of the LGBT advocacy group Lambda Legal.

A patchwork of state laws dealing with the bathroom issue will continue to emerge.

Fifteen states have explicit protections for transgender students in their state laws, and many individual school districts in other states have adopted policies that cover such students on the basis of their gender identity, said Sarah Warbelow, legal director of the Human Rights Campaign.

Just one state, North Carolina, has enacted a law restricting access to bathrooms in government-owned buildings to the sex that appears on a person’s birth certificate. But so far this year, lawmakers in more than 10 states are considering similar legislation, according to the National Conference of State Legislatures.