The move by the Justice Department does not immediately change the situation for the nation’s public schools, as a federal judge had already put a temporary hold on the guidance as a lawsuit by a dozen states moved through the courts.
But it suggests that the Trump administration will take a different approach on the hotly contested issue of transgender rights, which many conservatives thought went too far under the Obama administration.
And how the Trump administration decides to proceed on the particular issue of transgender students and bathroom use would affect several other cases in which students are challenging their school districts’ policies, including one involving Virginia student Gavin Grimm, which is scheduled to be heard by the Supreme Court later this spring.
The brief, filed in the Court of Appeals for the 5th Circuit, came as part of a long-running lawsuit by 12 states opposed to Education Department guidance issued last year directing the nation’s public schools to allow transgender students to use the bathroom of their choice. The Obama administration took the position that barring the students from bathrooms that matched their gender identity was a violation of Title IX, the federal law that prohibits sex discrimination in public schools.
U.S. District Judge Reed O’Connor had sided with the states and issued a temporary injunction blocking the guidance last year. The Obama administration appealed the decision and asked that the injunction apply only to those 12 states. Arguments in the case were scheduled to be heard Tuesday in Austin.
But the Justice Department and the suing states said in a joint brief Friday that they were withdrawing that request. The brief asked the court to cancel arguments, explaining that “the parties are currently considering how best to proceed in this appeal.”
The request was immediately granted, according to Equality Case Files, a nonprofit organization that provides legal updates on cases related to gay and transgender rights.
The decision drew immediate criticism from gay and transgender rights groups.
“Transgender students are entitled to the full protection of the United States Constitution and our federal nondiscrimination laws,” Chad Griffin, president of the Human Rights Campaign, said in a statement. “It is heartbreaking and wrong that the agency tasked with enforcing civil rights laws would instead work to subvert them for political interests. President Trump must immediately reverse course and direct the DOJ to uphold guidance protecting transgender students.”
That the Trump administration would reverse course on the previous administration’s efforts on behalf of transgender people is not exactly a surprise.
In an interview last May with The Washington Post, Donald Trump, then the front-runner for the Republican nomination for president, said it was important to protect the rights of transgender people but thought the decision of how to direct schools to deal with transgender students was best left up to the states.
“I don’t think so, because you’ve got to protect all people, even though it’s a tiny percentage of 1 percent,” Trump said. “I think from that standpoint, [states] should come up with a policy that’s going to work for everybody and protect people.”
He repeatedly said during the interview he thought most states would “make the right decisions.”
Grimm, a senior at Gloucester High in Gloucester, Va., sued his school board two years ago after it barred him from the boys’ bathroom. In April, the Court of Appeals for the 4th Circuit sided with Grimm, deferring to the Obama administration’s position that barring transgender students from bathrooms that align with their gender identity is sex discrimination.
The school board appealed the case to the Supreme Court, which is scheduled to hear arguments in March.
But it is unclear what will happen if the administration’s position on transgender students rights changes. Joshua Block of the American Civil Liberties Union, who is representing Grimm, said he believes the case still has grounds to move forward. But Francisco Negron Jr., chief legal officer for the National School Boards Association, said late last year that he is skeptical.