The Federal Government’s Reversal: Let the States Deal With Transgender Kids

The Departments of Education and Justice released revised guidelines on how schools should handle gender-identity issues.

Gavin Grimm, a transgender student in Virginia, sued his school district over the right to use the boys' bathroom. The Supreme Court will hear his case this spring. (Steve Helber / AP)

The Trump administration issued a new letter on Wednesday: The federal government will no longer stand behind Obama-era guidelines requiring schools to accommodate transgender students based on their gender identity. The new administration is withdrawing two letters, written in 2015 and 2016, in order to “further and more completely consider the legal issues involved.” The Departments of Justice and Education believe “there must be due regard for the primary role of the States and local school districts in establishing educational policy,” it said.

The letter signals how the Trump administration will handle cases of perceived discrimination against transgender students. Toward the end of the letter, the administration notes that “all schools must ensure that all students, including LGBT students, are able to learn and thrive in a safe environment.” The primary disagreement is about where those protections come from: While the Obama administration believed existing civil-rights laws specifically cover transgender students, the Trump administration argues that this interpretation was not based on “extensive legal analysis” and did not undergo any formal public-review process.

This decision to reverse course on transgender rights could have consequences for a number of pending court cases. But most importantly, the letter suggests that the federal government will step back from this fight altogether, leaving it to the states to decide.

The new letter is largely a response to a letter released by the Obama administration last May, which instructed schools to accommodate students based on their stated gender identity. Among other things, this meant schools were required to let transgender students use the bathroom corresponding to their gender identity, and they could not require these students to use special private facilities. The Obama administration also instructed schools not to disclose personal information about transgender students, including their birth name or sex assigned at birth, that “could be harmful to or invade the privacy of transgender students.”

These guidelines were issued under Title IX, the portion of the Education Amendments Act of 1972 that prohibits sex discrimination in education programs that receive federal funding. Especially during the last several years, Obama administration officials took steps to establish “gender identity” as part of “sex” under a number of civil-rights statutes, including Title IX. According to this interpretation, transgender people are protected by law from discrimination in areas from education to health care to employment, in certain cases.

The new letter backs away from this interpretation. The Obama administration’s guidance does not “explain how [its] position is consistent with the express language of Title IX,” the letter states. It also cites the extensive court challenges that have been raised against the Obama-era interpretation. Last spring, 11 states sued the Obama administration over its guidance on Title IX. In August, a federal court issued an injunction preventing the guidelines from being enforced. Scattered lawsuits have additionally been filed across the country challenging school districts’ transgender-friendly bathroom policies, often championed by parents concerned about non-transgender students’ privacy. And court interpretations of other statutes dealing with sex discrimination, including Title VII, have been just as divided.

Now, the Supreme Court is preparing to take up the issue. In March, the Court will hear Gloucester County School Board v. G.G., a case concerning a transgender student in Virginia who sued his school district for access to the boys’ bathroom under Title IX. While a lower court ruled that the student, Gavin Grimm, should be able to use the bathroom according to his gender identity, the Supreme Court stayed the ruling, meaning it is not yet being enforced.

All of this comes back to the Trump administration’s letter. Various court decisions in Gloucester County explicitly referred to the Obama administration’s letter—the Fourth Circuit found that the Education Department’s interpretation of Title IX had “controlling weight” in the case, for example. On Wednesday, the deputy solicitor general notified the Court that the administration’s position had officially changed. With a new interpretation guiding the government, Grimm and other students like him may suddenly find themselves with very different odds of success in court.

In a statement, Education Secretary Betsy DeVos underscored the administration’s commitment to investigate claims of discrimination against LGBT students. “We have a responsibility to protect every student in America and ensure that they have the freedom to learn and thrive in a safe and trusted environment,” she said. “This is not merely a federal mandate, but a moral obligation no individual, school, district or state can abdicate.” That commitment is distinctly different from ensuring that students like Grimm will be allowed to use the bathroom of their choice nationwide, though.

Ultimately, this new letter merely tilts the legal landscape back toward the pre-Obama era—it doesn’t redefine it. In the absence of a clear federal law, passed by Congress, prohibiting discrimination on the basis of gender identity, cases like Grimm’s will likely continue facing uncertain outcomes in court. Jeff Sessions, the U.S. attorney general, noted that the Department of Justice is only in a position to enforce existing law. “Congress, state legislatures, and local governments are in a position to adopt appropriate policies or laws addressing this issue,” he said in a statement.

Meanwhile, the status quo will continue under Trump: “This is an issue best solved at the state and local level,” DeVos said. “Schools, communities, and families can find—and in many cases have found—solutions that protect all students.” The federal government, it seems, will be sitting this issue out.