The Trump administration is poised to issue new guidance outlining which restrooms transgender students can use, potentially sowing confusion in schools, angering LGBTQ rights groups and adding uncertainty to a widely discussed case due to come before the U.S. Supreme Court next month.
Speaking to reporters Tuesday, White House Press Secretary Sean Spicer said President Donald Trump “has maintained for a long time that this is a states’ rights issue and not one for the federal government.”
Spicer announced that there would be “further guidance” coming soon on the issue from the administration. He offered no timeline, and the U.S. Department of Education did not immediately reply to a request for more information.
The Obama administration last year issued guidelines requiring that schools allow transgender students to use restrooms matching their chosen gender rather than their birth gender. Thirteen states challenged the move, prompting a federal judge in Texas to issue a nationwide hold on enforcement of the guidance.
Fifteen states have explicit protections for transgender students, and many individual school districts in other states have adopted policies that recognize students on the basis of their gender identity, Sarah Warbelow, legal director of the Human Rights Campaign (HRC) told The Associated Press. Just one state, North Carolina, has enacted a law restricting students' bathroom access to their sex at birth. But so far this year, lawmakers in more than 10 states are considering similar legislation, according to the National Conference of State Legislators.
Ryan Anderson, a senior research fellow with the conservative Heritage Foundation, said the Obama guidelines were unlawful because federal Title IX law protects students based on their sex, not their gender identity. He also said that those directives violated the rights of other students, especially girls who may have suffered from sexual abuse in the past and do not want to be exposed to male anatomy. "It's understandable when a 16-year-old girl might not want an anatomical male in the shower or the locker room," Anderson said.
He said that students, parents and teachers should work out "win-win" solutions at the local level, such as equipping schools with single-occupancy restrooms or locker rooms or allowing students to access the faculty lounge.
About 150,000 youth — 0.7 percent— between the ages of 13 and 17 in the United States identify as transgender, according to a study by The Williams Institute at the UCLA School of Law. In perhaps the most visible case surrounding the controversy, a Virginia high school student last year sought to set a nationwide standard for transgender students. A federal appeals court last April ruled in favor of 17-year-old
News of Spicer's announcement traveled quickly through LGBT rights circles Tuesday afternoon, prompting several groups to hold a hastily arranged call with reporters.
“This is about adults trying to make political hay out of children, and it is not O.K.,” said Mara Keisling, executive director of the National Center for Transgender Equality. “It is never going to be O.K. for us.”
Keisling said the group would pursue the issue in the courts and Congress. In addition, she said, parents of transgender youth “are going to swing into action” to protect their children. “We are going to push this over and over again until our students are protected fully.”
HRC Senior Vice President Mary Beth Maxwell called the anticipated move “disgraceful.”
She noted that more than 1,000 parents of transgender youth had asked Trump, in a letter, “to defend the rights, safety and dignity” of their children.
“If President Trump moves forward with this attack on transgender students, there are millions of people, including these parents and others like them, who will stand up and fight for basic fairness for every child,” Maxwell said.
Grimm, a high school senior in Gloucester County, Va., identified as a boy several years ago and eventually sought to use the boys' bathroom in school. A federal appeals court last April ruled in favor of him, based on Obama’s guidelines, so the new rules could throw the case into doubt.
Actress and transgender activist Laverne Cox earlier this month made Grimm a cause celebre when she told the crowd at the Grammy Awards, “Everyone please Google ‘Gavin Grimm.’ He’s going to the Supreme Court in March.”
Gavin Grimm with @Lavernecox #StandWithGavin pic.twitter.com/Kg14ODnaee
— Bi-Trans Alliance (@BiTransAlliance) February 20, 2017
The high court is expected to hear oral arguments in the case on March 28.
Activists say changing the federal guidance would leave students with less protection if they want to challenge state or school district rules.
"It is disheartening that the Trump administration’s first proposed education action would be designed to make students less safe,” said Bob Farrace of the National Association of Secondary School Principals. The group recommended last year that the federal government create explicit guidelines to protect what it called “a severely harassed and marginalized group of students.”
In an interview, HRC's Warbelow noted that even though Title IX gives students rights, new guidance will likely “sow confusion” in schools and allow unwilling administrators to engage in “bad behavior,” such as unlawfully disclosing a student’s transgender status.
“We obviously are frustrated, angry and disappointed, but we are not surprised,” Warbelow said. While Trump has at times said he supports LGBTQ rights, she said, since his inauguration he has “explicitly promised to undermine our rights.”
Keisling said advocates and families of transgender students had been anticipating the move. Should the Trump administration rescind the guidance, trans students would still be protected under federal Title IX law, she said. “But such clear action directed at children would be a brazen and shameless attack on hundreds of thousands of young Americans who must already defend themselves against schoolyard bullies, but are ill-equipped to fight bullies on the floors of their state legislatures and in the White House.”
.@HRC calls on the Trump Admin to immediately & permanently affirm guidance to protect #transgender students. https://t.co/gd8nOA1Jnm
— HumanRightsCampaign (@HRC) February 21, 2017
