(CN) – President Donald Trump’s administration Wednesday rescinded a directive for public schools to honor students’ gender identity, undoing President Barack Obama’s efforts to protect transgender students from discrimination.
Under threat of cutting their federal funding, Obama issued a directive in May 2016 that public school districts classify students based on their chosen gender, not by what’s listed on their birth certificates.
The Obama administration defended the mandate against a legal challenge from Texas and 12 other states by interpreting Title IX’s prohibition of sex discrimination in public education to include gender identity.
In revoking the directive, Trump said states and school districts should set their own policies.
It was an about-face for Trump, who said during his presidential campaign that Caitlyn Jenner, a transgender Olympic gold-winning decathlete and reality TV star, could use whatever bathroom she wanted to at Trump Tower, a Manhattan skyscraper developed by Trump that houses his penthouse condominium.
White House spokesman Sean Spicer told reporters Wednesday that the Departments of Education and Justice, which jointly issued the directive, are deciding how to approach the issue ahead of March 28 arguments before the Supreme Court in Gloucester County School Board v. Gavin Grimm, in which a transgender student is challenging a Virginia school board’s refusal to let him use boys bathrooms.
Spicer indicated the Trump administration agrees with the Title IX analysis of a federal judge in Fort Worth who blocked the directive with a nationwide preliminary injunction in August.
U.S. District Judge Reed O’Connor, a George W. Bush appointee, said in his injunction order that Title IX should be interpreted by its “ordinary meaning” and that “sex” means the “biological and anatomical differences between male and female students as determined at their birth,” and does not encompass gender-identity discrimination claims.
The Department of Justice asked the Fifth Circuit to stay the injunction, but two days after former Alabama Senator Jeff Sessions, a Republican, was confirmed as attorney general, he canceled a Valentine’s Day hearing where the Justice Department was to argue that the injunction should be limited to the 13 states that sued over the directive.
Sessions told Reuters on Wednesday that the Obama guidelines “did not contain sufficient legal analysis or explain how the interpretation was consistent with the language of Title IX.”
Sessions reportedly convinced Trump to agree on rescinding the guidance over the concerns of Education Secretary Besty DeVos, who said she was uncomfortable about leaving transgender students unprotected.
Texas Attorney General Ken Paxton, whose office led the legal battle, said in a statement he’s unsure how the case will proceed now that the directive has been rescinded.
“Our fight over the bathroom directive has always been about former President Obama’s attempt to bypass Congress and rewrite the laws to fit his political agenda for radical social change,” Paxton said in a statement.
The Lambda Legal Defense and Education Fund, a nonprofit LGBT-advocacy organization, filed an amicus brief in support of the Obama directive.
Its CEO on Wednesday insisted the Obama administration correctly interpreted Title IX, and she vowed to defend transgender students in court.
“Trump’s actions do not change the law itself — transgender students remain protected by Title IX of the Education Amendments of 1972 — but abandoning the guidance intentionally creates confusion about what federal law requires. … We are prepared to sue any school district that discriminates in the wake of the Trump administration’s actions,” CEO Rachel Tiven wrote in a blog post.
Mara Keisling, executive director of the National Center for Transgender Equality, warned that the Trump administration is opening the door for discrimination against transgender students.
“Transgender students thrive when treated equally, but too often they are not. These young people already face incredible hurdles in their pursuit of education and acceptance. With a pen stroke, the Trump Administration effectively sanctions the bullying, ostracizing and isolation of these children,” Keisling said in a statement.Follow @cam_langford
Subscribe to Closing Arguments
Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.