Republican President Donald Trump's administration was expected to revoke landmark guidelines issued to public schools in defense of transgender student rights, according to a draft document seen by Reuters on Wednesday. The draft reverses former Democratic President Barack Obama's signature initiative on transgender rights, which instructed public schools to allow transgender students to use the bathrooms matching their chosen gender identity.
"I would expect further guidance to come out on that today," White House spokesman Sean Spicer told a news briefing on Wednesday.
The draft document, a joint effort of the Justice and Education departments, could be subject to change before it is sent to schools across the country. The document states that its purpose is to withdraw the guidance of May 13, 2016, while Trump's Justice and Education departments "further consider the legal issues involved."
Reversing the Obama guidelines stands to inflame passions in the latest conflict in America between believers in traditional values and the socially progressive, and is likely to generate more of the street protests that have followed Trump's Nov. 8 election.
Spicer said the White House was pressed to act because of a pending Supreme Court case that is due to be argued in March, G.G. versus Gloucester County School Board. That case pits a Virginia transgender boy, Gavin Grimm, against officials who want to deny him use of the boys' room at his high school.
Although the Justice Department is not a party in the case, it typically would want to make its views heard. "We have to determine whether or not to continue to issue guidance to the court," Spicer said. In addition to rescinding Obama's guidance, the draft document also withdraws an Education Department letter in support of Grimm.
Obama's Education Department undertook the guidance in response to queries from school districts around the country about how to accommodate transgender students in gender-segregated bathrooms. The Obama Justice and Education departments then issued the guidance last May, threatening to withhold federal funding if schools forced transgender students to use bathrooms corresponding to their gender assigned at birth against their will.
Conservatives immediately opposed the rules, calling them a federal government overreach into what should be a matter for states. They also raised fears about men or boys claiming to be transgender in order to spy or prey on women or girls in public restrooms. Thirteen states led by Texas sued to stop it, and a U.S. district judge in Texas temporarily halted its full implementation. That lawsuit would be rendered moot by the new policy, which also allows public schools to set their own rules without fear of losing federal funds or a lawsuit from the Justice Department.
During the election campaign, Trump at first said transgender people should be able to use the bathroom they feel is appropriate, but changed tack after coming under criticism from fellow Republicans, saying it should be a matter for states to decide. Transgender legal advocates have criticized the "states' rights" argument, saying federal law and civil rights are matters for the federal government to enforce, not the states.
"Since when does the United States make your civil rights subject to your zip code?" said Eliza Byard, executive director of GLSEN, a group advocating for LGBT students. The federal law in question, known as Title IX, bans sex discrimination in education. But it remains unsettled whether Title IX protections extend to a person's gender identity. The U.S. Supreme Court could settle the issue in a case due to be argued in March. "Title IX never talked about this," Spicer said. "It was enacted in 1972. There was no discussion of this back then and to assume certain elements of the law were thought of back then with respect to this would be completely preposterous."
The draft document challenges the Obama interpretation that Title IX protects gender identity, saying it has "given rise to significant litigation" and has confused educators who have "struggled to understand and apply" the previous guidance.Try Newsweek: Subscription offers