- The Washington Times - Wednesday, February 22, 2017

The Trump administration revoked an Obama-era mandate compelling public schools nationwide to permit restroom and locker room access on the basis of gender identity — a move that could have significant ramifications for a case before the Supreme Court concerning transgender rights.

The Departments of Education and Justice issued a joint guidance Wednesday evening rolling back the order. The two-page “Dear Colleague Letter” said the Obama administration had failed to substantiate the claim that Title IX’s prohibition on “sex” discrimination in education also applies to gender identity.

“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 order reads. “The Departments thus will not rely on the views expressed within them.”

The guidance also said the federal government must recognize “the primary role of the States and local school districts in establishing education policy.”

John Eastman, founding director of the Claremont Institute’s Center for Constitutional Jurisprudence, said the Trump administration’s guidance correctly interprets Title IX and protects the privacy rights of all students.

“It’s not a denial of transgender rights to faithfully apply a statute,” Mr. Eastman said. “We also have a very competing set of rights for privacy. The notion that anatomical boys are going to be in showers in an undressed state with anatomical girls is something that is a really serious challenge to the privacy rights of everybody else in that shower.”

SEE ALSO: Betsy DeVos commited to protect transgender students

James Esseks, director for the American Civil Liberties Union LGBT Project, said schools still have a legal obligation to permit restroom and locker room access on the basis of gender identity.

“Revoking the guidance shows that the president’s promise to protect LGBT rights was just empty rhetoric,” Mr. Esseks said in a statement. “But the bottom line is that this does not undo legal protections for trans students, and school districts can and must continue to protect them and all students from discrimination.”

The ACLU represents a transgender student, Gavin Grimm, who sued a Virginia school board over the right to use the boys’ bathroom. The Supreme Court is scheduled to hear that case next month.

Mr. Eastman said the Supreme Court will likely send the case back to the 4th U.S. Circuit Court of Appeals, which deferred to the Obama administration’s interpretation of Title IX in siding with the transgender student.

“I think it does likely lead to the Supreme Court dismissing the [agreement to hear the case] it improvidently granted, so there would be an opportunity for the 4th Circuit to revisit the issue,” Mr. Eastman said. “The interpretive guidance which was the basis for the 4th Circuit’s decision no longer exists.”

The 4th Circuit could still reach the same legal conclusion, Mr. Eastman said, but it would be difficult because of a statutory exemption explicitly permitting the segregation of intimate facilities on the basis of sex.

“On that question, I believe the answer is very clear,” he said. “There’s a specific statutory exemption that allows for single-sex housing facilities, and one also has to include within that showers and restrooms. So if the 4th Circuit said there’s a mandate to the contrary, then the 4th Circuit would be ignoring that statutory exemption.”

Joshua Block, senior staff attorney for the ACLU and lead counsel in the Supreme Court case, said the repeal of the order does not change the legal questions under consideration.

“While it’s disappointing to see the Trump administration revoke the guidance, the administration cannot change what Title IX means,” Mr. Block said in a statement. “When it decided to hear Gavin Grimm’s case, the Supreme Court said it would decide which interpretation of Title IX is correct, without taking any administration’s guidance into consideration. We’re confident that the law is on Gavin’s side and he will prevail just as he did in the 4th Circuit.”

The Obama administration order threatened to withhold federal education funding from schools that regulate intimate facilities on the basis of biological sex.

The mandate was blocked by a federal court in August after 12 states challenged the Obama administration’s interpretation of Title IX. An appeal challenging that ruling was withdrawn this month by U.S. Attorney General Jeff Sessions.

Texas Attorney General Ken Paxton, who spearheaded the resistance to the initial order, called the Trump administration’s action encouraging.

“Our fight over the bathroom directive has always been about former President Obama’s attempt to bypass Congress and rewrite the laws to fit his political agenda for radical social change,” Mr. Paxton said in a statement. “The Obama administration’s directive on bathrooms unlawfully invaded areas that are left to state discretion under the 10th Amendment. School policy should center on the safety, privacy and dignity of its students, not the whims federal bureaucrats.”

Education Secretary Betsy DeVos raised concerns at a White House meeting Tuesday, prompting reports Wednesday that she and Mr. Sessions did not see eye to eye on the order’s repeal.

In his press briefing later that day, White House press secretary Sean Spicer dismissed that claim, saying “everybody in the administration” was in agreement about the proper course of action.

Mrs. DeVos said Wednesday night that her agency remains committed to protecting all students, including transgender youths but that the issue is “best solved at the state and local level.”

Human Rights Campaign President Chad Griffin said the order’s repeal will harm transgender students.

“What could possibly motivate a blind and cruel attack on young children like this?” Mr. Griffin said in a statement. “These transgender students simply want to go to school in the morning without fear of discrimination or harassment.”

“This isn’t a ‘states’ rights’ issue; it’s a civil rights issue,” he said. “Children deserve protection from bullying no matter what state they live in. Period.”

The Trump administration order stresses that schools have an obligation to protect all students from bullying.

“Please note that this withdrawal of these documents does not leave students without protections from discrimination, bullying and harassment,” the order reads. “All schools must ensure that all students, including LGBT students, are able to learn and thrive in a safe environment.”

Mrs. DeVos spoke similarly in her Wednesday night statement, saying the protection of “a safe and trusted environment” in which to learn is “not merely a federal mandate, but a moral obligation no individual, school, district or state can abdicate.”

She added that “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” and her 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.”

Gary McCaleb, senior counsel for the Alliance Defending Freedom, said the repeal of the mandate protects the “privacy, safety and dignity of young students across America.”

“No longer will federal officials distort federal law that is meant to equalize educational opportunities for women, and no longer will they force local officials to intermingle boys and girls within private areas like locker rooms, showers, hotel rooms on school trips and restrooms.”

Dave Boyer contributed to this report.

• Bradford Richardson can be reached at brichardson@washingtontimes.com.

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