Education and Justice Depts. rescind transgender bathroom guidance
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In what The New York Times’ Editorial Board is calling a ‘broken promise,’ The Trump administration has rescinded the previous administration’s guidance for schools concerning transgender students. During the campaign, Trump expressed a desire to protect LGBT people from discrimination.
The most noted aspect of this guidance was the direction that transgender students be allowed to use bathrooms they choose rather than being required to the bathrooms’ that correspond to their anatomical sex according to CNN. The Obama administration gave the direction based on Title IX. Title IX prohibits sex discrimination, and the previous administration made the call based on the interpretation that gender identity falls under this umbrella.
The Trump administration’s letter announcing the change comes from the Departments of Education and Justice. The letter cites legal issues that have arisen as a result of the guidance. For example, while the Fourth Circuit Court of Appeals affirmed the interpretation of the term “sex,” a Texas federal district court argued “sex” is an exclusively biological term as reported by The Washington Post.
The letter goes on to affirm that LGBT students are protected from discrimination and deserve a safe learning environment. It is worth noting that the guidance given by the Obama administration did not add anything to law, and thus the Trump administration’s pullback also does not affect the law. The letter states that “there must be due regard for the primary role of the States and local school districts in establishing educational policy” as well, an appeal to the 10th Amendment.
While the Departments of Education and Justice released the announcement, their heads are not in agreement. Attorney General Jeff Sessions supported the move, while Education Secretary Betsy DeVos expressed concern for transgender students who will be affected according to The New York Times.
As of now, schools are still free to make their own policies on the matter. Next month however, the Supreme Court is expected to hear arguments on the matter of a Virginia transgender student who was denied access to the boys’ restroom and directed to use the unisex restrooms. This will be the first Supreme Court consideration of Title IX and transgender students. The forthcoming question, then, is which interpretation of Title IX the Supreme Court will affirm.