Trump Administration Set to Revoke Landmark Guidelines on Transgender Student Rights

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Sticker placed on the door at the ceremonial opening of a gender neutral bathroom at Nathan Hale High School in Seattle, in May 2016.
Sticker placed on the door at the ceremonial opening of a gender neutral bathroom at Nathan Hale High School in Seattle, in May 2016.Credit: Elaine Thompson/AP

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 on Wednesday by Reuters.

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 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.

Its issuance was delayed by a disagreement between two members of Trump's Cabinet, with Attorney General Jeff Sessions pushing for a repeal of the Obama guidance and Education Secretary Betsy DeVos resisting, according to advocacy groups that have been in contact with administration officials.

Spicer, however, denied any serious division, saying, "There is no daylight between anybody, between the president, between any of the secretaries" and that DeVos was in agreement "100 percent."

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."

Last year's guidance, issued by Obama's Justice and Education departments, threatened to withhold federal funding if schools forced transgender students to use bathrooms corresponding to their gender assigned at birth against their will.

Conservatives have raised fears about men or boys claiming to be transgender in order to spy or prey on women or girls in public restrooms.

Under the new guidelines, public schools could 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.

On Tuesday, that "states' rights" position was repeated by White House spokesman Spicer. His comments were immediately criticized by transgender legal advocates, who say federal law and civil rights are matters for the federal government to enforce, not the states.

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. 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.

"In these circumstances, OCR (the Education Department's civil rights office) and DOJ have decided to withdraw and rescind the above-referenced guidance documents in order to further consider the legal issues involved," the document said.

Thirteen states led by Texas used a states' rights defense in a lawsuit against the Obama administration over its transgender bathroom guidance. That lawsuit would be rendered moot by the new policy.

The withdrawal is also certain 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 followed Trump's Nov. 8 election.

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