The Trump administration will issue new guidelines on how public schools treat transgender students, Press Secretary Sean Spicer said at a news briefing on Tuesday, indicating that the matter should be left up to states.
The announcement suggests the Justice Department will rescind a policy enacted by the Obama administration designed to protect transgender students from discrimination and harassment, which said students could use facilities that match their gender identity, from restrooms to dorms.
Asked about rumors that Trump intends to withdraw the guidance, Spicer said, "That is an issue that the Department of Justice and the Department of Education are addressing. I think that there will be further guidance coming from DOJ in particular with respect not just to the executive order but also the case that is in front of the Supreme Court."
"The president has maintained for a long time that this is a states’ rights issue and not one for the federal government," he continued. "So will there be further guidance coming out on this? I think all you have to do is look at what the president's view has been for a long time. That this is not something that the federal government should be involved in. This is a states' rights issue."
Vanita Gupta, who led the Justice Department's Civil Rights Division under Obama, said repealing the guidance — which interprets federal law — would not eliminate protections provided by the laws themselves.
"This administration cannot strip away the rights of transgender students by retracting the guidance — the issue is before the courts now and the law has not changed," she said in a statement to BuzzFeed News, referring to questions before the Supreme Court and other federal judges.
"To cloak this in federalism ignores the vital and historic role that federal law plays in ensuring that all children are able to attend school free from discrimination," she said.
LGBT advocates have been concerned the new guidance could come as soon as this week.
The move is not entirely unexpected and jibes with a decision by the Justice Department this month to step away from defending the guidance in a federal appeals court. The DOJ declined to comment on Monday when asked if Trump plans to revoke the guidance. The Education Department did not respond to inquires.
Although withdrawing the directive may have little short-term impact on schools — it was suspended by a federal court last summer — it signals a different approach to accommodating transgender students under the new administration. Most immediately, the move could neutralize lawsuits from more than a dozen states that had challenged the policy.
Issued last May by the Justice Department and Education Department, the guidance took the form of a dear-colleage letter that says schools “must not treat a transgender student differently from the way it treats other students of the same gender identity.” The policy extended from facilities to sports teams and single-sex classes.
In its directive, the Obama administration asserted that Title IX of the Education Amendments of 1972, which bans sex discrimination in public schools, also bans transgender discrimination as a form of sex discrimination, and warned that breaking the rules could cost federal funding.
Within days, Texas Attorney General Ken Paxton and officials in 10 other states sued to challenge the policies as they applied in schools, as well as similar federal rules advancing transgender rights in the workplace.
During the presidential campaign, Vice President Mike Pence seemed to share concerns with those states, saying that he and Trump planned to scotch the guidelines if they won.
“Donald Trump and I simply believe that all of these issues are best resolved at the state level,” he said in an October radio show with Focus on the Family’s James Dobson. “Washington has no business intruding on the operation of our local schools.”
Likewise, under Obama, officials interpreted Title VII of the Civil Rights Act of 1964 to protect transgender employees; agencies have issued analogous guidelines for restroom access in public and private workplaces.
However, the school guidance last May became particularly contentious, raising objections that it would allow male students into female facilities and that it exceeded the president’s authority.
US District Court Judge Reed O'Connor in Texas issued an injunction in August, finding that the Obama administration likely violated the Administrative Procedure Act for failing to follow proper notice and comment procedures.
The court also said Title IX did not apply to transgender students. Rather, the judge’s order said, the term “sex” in civil rights laws concern “the biological and anatomical differences between male and female students as determined at their birth.”
Although the Justice Department had appealed part of that decision to a higher court when Obama was in the White House, US Attorney General Jeff Sessions took a different tack two days after after he was sworn in. Sessions withdrew the government's request to limit the injunction and canceled oral arguments before the Fifth Circuit of Appeals.
While the Education Department is blocked from enforcing transgender discrimination under Title IX, individuals will still be able to bring complaints to federal courts.
It was not clear what impact rescinding the guidance could have on a case scheduled to go before the Supreme Court in March. Gavin Grimm, a transgender teenager in Virginia, is suing his school board over a policy that requires students to use facilities that match their "biological gender" — thereby banning him from the boys room. He had prevailed in lower courts. Now, one of the questions facing the high court is whether local school districts must give deference to the Education Department's guidance on Title IX.
This report was updated with comment from Vanita Gupta.