On Wednesday evening the U.S. Department of Education and U.S. Department of Justice under the direction of President Donald Trump rescinded the directive given to public schools on transgender students by the Obama administration.
The guidance mandated that schools receiving Title IX funding ensure they prove a “safe and nondiscriminatory” environment. It also mandated that schools treat students consistent with their gender identity, even if their education records indicate a different sex.
The original guidance addressed sex-segregated activities and facilities.
Title IX’s implementing regulations permit a school to provide sex-segregated restrooms, locker rooms, shower facilities, housing, and athletic teams, as well as single-sex classes under certain circumstances. When a school provides sex-segregated activities and facilities, transgender students must be allowed to participate in such activities and access such facilities consistent with their gender identity.
This includes restrooms, locker rooms and athletics.
Many parents, students and states reacted negatively to guidance that extended what many states required. The guidance stated offering private facilities was not enough, and it did not respect the privacy rights of students and school staff.
More importantly the Obama administration attempted to make law by reinterpreting Title IX which did not offer protect for gender identity. Congress when it passed the Civil Rights Act and with Title IX intended that “sex” meant biological sex. It did not mean gender identity, so the Obama administration in its guidance violated the separation of powers provided by the Constitution. The President can not rewrite or simply reinterpret laws to his liking.
President Trump, Secretary DeVos and Attorney General Sessions should be commended for their action.
The new guidance letter written by Sandra Battle, the acting assistant secretary for civil rights with the U.S. Department of Education, and T.E. Wheeler, II, the acting assistant attorney general for civil rights with the U.S. Department of Justice says:
These guidance documents take the position that the prohibitions on discrimination “on the basis of sex” in Title IX of the Education Amendments of 1972 (Title IX), 20 U.S.C. § 1681 et seq., and its implementing regulations, see, e.g., 34 C.F.R. § 106.33, require access to sex-segregated facilities based on gender identity. These guidance documents do not, however, 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.
This interpretation has given rise to significant litigation regarding school restrooms and locker rooms. The U.S. Court of Appeals for the Fourth Circuit concluded that the term “sex” in the regulations is ambiguous and deferred to what the court characterized as the “novel” interpretation advanced in the guidance. By contrast, a federal district court in Texas held that the term “sex” unambiguously refers to biological sex and that, in any event, the guidance was “legislative and substantive” and thus formal rulemaking should have occurred prior to the adoption of any such policy. In August of 2016, the Texas court preliminarily enjoined enforcement of the interpretation, and that nationwide injunction has not been overturned.
In addition, the Departments believe that, in this context, there must be due regard for the primary role of the States and local school districts in establishing educational policy.
In these circumstances, the Department of Education and the Department of Justice have decided to withdraw and rescind the above-referenced guidance documents in order to further and more completely consider the legal issues involved. The Departments thus will not rely on the views expressed within them.
Please note that this withdrawal of these guidance documents does not leave students without protections from discrimination, bullying, or harassment. All schools must ensure that all students, including LGBT students, are able to learn and thrive in a safe environment. The Department of Education Office for Civil Rights will continue its duty under law to hear all claims of discrimination and will explore every appropriate opportunity to protect all students and to encourage civility in our classrooms. The Department of Education and the Department of Justice are committed to the application of Title IX and other federal laws to ensure such protection.
U.S. Secretary of Education Betsy DeVos issued a statement in response to this joint action:
We have a responsibility to protect every student in America and ensure that they have the freedom to learn and thrive in a safe and trusted environment. This is not merely a federal mandate, but a moral obligation no individual, school, district or state can abdicate. At my direction, the Department’s Office for Civil Rights remains committed to investigating all claims of discrimination, bullying and harassment against those who are most vulnerable in our schools.
The guidance issued by the previous administration has given rise to several legal questions. As a result, a federal court in August 2016 issued a nationwide injunction barring the Department from enforcing a portion of its application. Since that time, the Department has not enforced that part of the guidance, thus there is no immediate impact to students by rescinding this guidance.
This is an issue best solved at the state and local level. Schools, communities, and families can find – and in many cases have found – solutions that protect all students.
I have dedicated my career to advocating for and fighting on behalf of students, and 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.
We owe all students a commitment to ensure they have access to a learning environment that is free of discrimination, bullying and harassment.
U.S. Attorney General Jeff Sessions also released a statement:
The Department of Justice has a duty to enforce the law. The prior guidance documents did not contain sufficient legal analysis or explain how the interpretation was consistent with the language of Title IX. The Department of Education and the Department of Justice therefore have withdrawn the guidance. Congress, state legislatures, and local governments are in a position to adopt appropriate policies or laws addressing this issue. The Department of Justice remains committed to the proper interpretation and enforcement of Title IX and to its protections for all students, including LGBTQ students, from discrimination, bullying, and harassment.
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