Education Law

Trump administration rescinds Obama policy on transgender restrooms, cites lack of legal analysis

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transgender restroom

The Trump administration on Wednesday rescinded a directive that had told public schools to allow transgender students to use bathrooms and locker rooms that match their gender identity.

A “Dear Colleague” letter by the U.S. Justice Department and the U.S. Department of Education says the guidance is being withdrawn “to further and more completely consider the legal issues involved.” The Washington Post, the New York Times and Reuters have stories.

The New York Times reports that Education Secretary Betsy DeVos had initially resisted rescinding the Obama administration policy. Its report is based on three unidentified Republicans with direct knowledge of the discussions. DeVos had expressed concern that the rescission could harm transgender students and had reportedly clashed with Attorney General Jeff Sessions on the issue.

Sessions asked Trump to intervene, and he sided with the attorney general, the sources told the Times.

The Obama administration had taken the position that the ban on discrimination “on the basis of sex” in Title IX of the Education Act of 1972 required schools to allow transgender students to use the facilities corresponding with their gender identity. A federal judge had blocked the government from enforcing the prior directive in a suit by 13 states.

The letter released on Wednesday says the Obama administration guidance documents did not “contain extensive legal analysis or explain how the position is consistent with the express language of Title IX, nor did they undergo any formal public process.”

The new letter also cites a need to give “due regard for the primary role of the states and local school districts in establishing educational policy.”

DeVos released a statement on Wednesday saying schools had a “moral obligation” to protect all students from discrimination, bullying and harassment. “As secretary of education, I consider protecting all students, including LGBTQ students, not only a key priority for the department, but for every school in America,” she said.

Sessions also released a statement saying the Justice Department remains committed to enforcing Title IX to protect all students, including LGBTQ students, from harassment.

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