The two-page “Dear colleague” letter from the Trump administration, which is set to go to the nation’s public schools, does not offer any new guidance, instead saying that the earlier directive needed to be withdrawn because it lacked extensive legal analysis, did not go through a public vetting process, sowed confusion and drew legal challenges.
The administration said that it would not rely on the prior interpretation of the law in the future.
The departments wrote that the Trump administration wants to “further and more completely consider the legal issues involved,” and said that there must be “due regard for the primary role of the States and local school districts in establishing educational policy.” Although it offered no clarity or direction to schools that have transgender students, the letter added that “schools must ensure that all students, including LGBT students, are able to learn and thrive in a safe environment.”
Attorney General Jeff Sessions said in a statement that his department “has a duty to enforce the law” and criticized the Obama administration’s guidance as lacking sufficient legal basis. Sessions wrote that the Department of Justice remains committed to the “proper interpretation” of the anti-discrimination law known as Title IX but said deference should be given to lawmakers and localities.
“Congress, state legislatures, and local governments are in a position to adopt appropriate policies or laws addressing this issue,” Sessions said.
Education Secretary Betsy DeVos echoed that sentiment, saying that this is an issue “best solved at the state and local level. Schools, communities, and families can find — and in many cases have found — solutions that protect all students.”
DeVos also gave assurances that the department’s Office for Civil Rights “remains committed to investigating all claims of discrimination, bullying and harassment against those who are most vulnerable in our schools,” and she noted that she considers “protecting all students, including LGBTQ students, not only a key priority for the Department, but for every school in America.”
The decision — delayed in part because DeVos and Sessions hit stalemates regarding timing and specific language — drew immediate condemnation from gay and transgender rights advocates, who accused President Trump of violating past promises to support gay and transgender protections. Advocates said the withdrawal of the federal guidance will create another layer of confusion for schools and will make transgender students, who are already vulnerable, more so.
“Attacking our children . . . is no way to say you support and respect LGBTQ people,” said Mara Keisling, executive director of the National Center for Transgender Equality.
Others said the practical effect on the nation’s schools would be muted, in part because a federal judge already had blocked the Obama guidance in response to a lawsuit from 13 states that argued it violated states’ rights. And it is possible the U.S. Supreme Court could settle the matter soon, as it plans to consider a Virginia case involving a transgender teenager who was barred from using the boys’ bathroom at his high school.
The Trump administration’s move drew cheers from social conservatives who oppose the idea that a student can identify as a gender that differs from their anatomy at birth.
Vicki Wilson, the mother of a child at Fremd High School in Palatine, Ill., said she sympathizes with children who have “difficult personal issues” to deal with, but thinks that “young men shouldn’t be permitted to deal with those issues in an intimate setting like a locker room with young women.”
School district officials in Palatine, bowing to federal pressure, allowed a transgender girl to change in the girls’ locker room at her school. “No school should impose a policy like this against the will of so many parents,” Wilson said during a news conference organized by the Alliance Defending Freedom, a Christian legal organization.
The administration's letter was the source of some disagreement between the two issuing departments, with Sessions eager to rescind the Obama administration's guidance as court proceedings in related cases approached, and DeVos keen to leave it in place. Unlike Arne Duncan, Obama's education secretary for seven years, DeVos does not have a close personal relationship with the president she serves; she also lacks the experience and political capital Sessions garnered as a Republican senator.
Sessions is widely known to oppose expanding gay and transgender rights, and DeVos’s friends say she personally supports those rights. The new letter is sure to ignite another firestorm for DeVos, who is fresh off her contentious nomination fight and has drawn protests from parents and teachers who believe she is unqualified for the job.
The letter also puts Trump squarely in the middle of the civil rights debate: Despite a flurry of activity in the early weeks of his presidency, Trump had not previously waded into the issue of gay and transgender rights.
Trump declined to sign an executive order last month that would have dramatically expanded the rights of people, businesses and organizations of faith to opt out of laws or activities that violate their religion, such as same-sex wedding ceremonies. Many took it as a sign that he would take a more liberal approach on gay issues than his Republican cohorts.
But in an interview with The Washington Post last year, then-candidate Donald Trump had indicated he would rescind the guidance based on the belief that it was a matter best left up to the states.
In the daily news briefing Wednesday, White House spokesman Sean Spicer played down the reports of disagreement within the administration — saying the debate came down to timing and some specific wording — and reiterated the states’ rights argument.
“The president’s made it clear throughout the campaign that he’s a firm believer in states’ rights,” Spicer said.
The Obama administration’s guidance was based on the position that barring students from bathrooms that match their gender identities is a violation of Title IX because it amounts to sex discrimination.
Many advocates contend the guidance merely formalized what courts have increasingly recognized: That discrimination against gay and transgender people is a form of sex discrimination because it is rooted in stereotypes about men and women. As a result, they believe transgender people already have the right under Title IX to use their preferred bathroom.
The new letter scrambles the calculus for a number of lawsuits working their way through the courts, particularly the case of Gavin Grimm, a transgender Virginia teen who sued his school board for barring him from the boys’ restroom. The case is scheduled for oral arguments before the U.S. Supreme Court next month. A lower court cited the Obama administration’s position on transgender student rights in siding with Grimm.
Grimm said he was disheartened that the Trump administration is withdrawing the guidance. The Gloucester, Va., school board continued to bar him from the boys’ bathroom even after the Obama guidance was issued, but Grimm said the directive was “incredibly empowering.”
“It certainly bolstered hope that the future for transgender students was looking up in a way that it hadn’t been previously,” Grimm said.
Amber Briggle, the mother of a 9-year-old transgender boy in Denton, Tex., said she views the Trump administration's position as a temporary setback and hopes that the Supreme Court will affirm transgender students' rights. But the withdrawal of the Obama directive is a blow, she said, because the guidance made her feel that Washington cared about children like hers and understood the support they need.
"I just don't think my family matters to the Trump administration," she said.
Catherine Lhamon, who headed the Obama Education Department’s Office for Civil Rights, said in a sworn declaration that the administration developed the guidance after receiving discrimination complaints from parents of transgender children and questions from teachers and administrators who were having to develop policies with regard to their transgender students.
In 2011, the Education Department received two complaints of discrimination against transgender students in schools. By 2016, that number had leapt to 84, according to the declaration filed in federal court.
In a kindergarten class where students line up by gender to go to the bathroom, “a student has to decide which line to get into, and the teacher has to decide which line to accept that student into, and both of them have to field questions from other students in the class,” Lhamon said in an interview. “Any of those choices raises potential for discrimination and potential for harm that all of the students and teachers in a school have to navigate. It’s not an abstraction for the people who live it every day.”
Lhamon said the withdrawal of the guidance and the notion that the federal government needs more time to consider the issue of transgender accommodations creates chaos in schools and sends a damaging message to children.
Without federal guidance, schools are likely to look to their state governments for clarity, said Francisco Negron Jr., chief counsel for the National School Boards Association.
That could open up battles across the country similar to one last year in North Carolina, when the legislature voted to require people in public buildings to use the restrooms that correspond with the sex listed on their birth certificates.
Fifteen states have explicit protections for transgender students, according to the Human Rights Campaign, a gay rights group; lawmakers in several other states are working to restrict bathroom access for transgender students. The American Civil Liberties Union, which tracks the legislation, said legislators in 14 states filed 20 bills that could lead to restroom restrictions for transgender people, with some proposing that states penalize schools that violate those restrictions. So far, five of those bills have failed.
Many school districts held off on writing restroom policies as they waited for the outcome of the Grimm case. Among them was Fairfax County, Va., one of the largest districts in the nation, which was preparing to draft regulations on restroom access for transgender students to reflect its nondiscrimination policy.
Elizabeth Schultz, a Fairfax County School Board member who opposes expanding the protections, said she hopes the new Trump administration action will lead the district to abandon its efforts.
If the threat of revoking federal funds "is no longer wielded against our local authority, there's no precipitating reason to continue," she said.
Robert Barnes and Matt Zapotosky contributed to this report.