The Department of Justice and the Department of Education announced on February 22, 2017 that they were revoking the May 13, 2016 federal guidance given under President Barack Obama to schools regarding bathroom use by transgender children. The revocation of the federal guidance gave authority back to the states to make their own decisions regarding whether or not transgender students can choose a male or female restroom based on the gender they most closely feel they identify with. This new statement was not an executive order by President Trump, but a rescission of President Obama’s directive.
During Obama Administration
During the Obama administration, there had been a heated debate over the issue of which bathroom transgender kids should be allowed to use. Boys who felt more like girls, and perhaps underwent medical procedures or hormone therapy, wanted to be referred to as “she,” “her,” etc. and they wanted to use the girls’ bathroom instead of the boys’ bathroom. Girls who identified more with boys wanted to be referred to as “he,” “his,” etc. and they wanted to use the boys’ facilities.
In response to this upheaval, the May 13, 2016 directive to let children use the bathroom of the gender they most closely identified with came down to the schools through a joint letter from the Departments of Education and Justice. The letter stated that its purpose was to let “transgender students enjoy a supportive and nondiscriminatory school environment.” The Attorney General at the time, Loretta Lynch, said, “This guidance gives administrators, teachers, and parents the tools they need to protect transgender students from peer harassment and to identify and address unjust school policies.”
The LGBT groups viewed the guidance letter as a validation of transgender rights and a rejection of the “bathroom bills” that tell people which bathroom they need to use. Human Rights Campaign President, Chad Griffin, stated, “These groundbreaking guidelines not only underscore the Obama administration’s position that discriminating against transgender students is flat-out against the law, but they provide public school districts with needed and specific guidance guaranteeing that transgender students should be using facilities consistent with their gender identity.”
Opposing the Obama directive to schools were conservatives such as Texas Senator, Ted Cruz, who stated, “America has woken up to yet another example of President Barack Obama doing through executive fiat what he cannot get done through our democratic process. Having spent many years in law enforcement, I’ve handled far too many cases of child molesters, of pedophiles, of people who abused little kids. The threats of predators are serious, and we should not facilitate allowing grown men or boys to be in bathrooms with little girls.”
Vicki Wilson, who was a member of Students and Parents for Privacy stated, “Our daughters should never be forced to share private intimate spaces with male classmates, even if those young men are struggling with these issues. It violates their right to privacy and harms their dignity.” This view was shared by many other people, as thirteen states immediately sued. A Texas federal judge put a hold on the directive, even though it did not have the force of law.
Although this directive under President Obama was not a law, it did come with a penalty of withheld federal funding for any school that did not enforce the transgender agenda. This was considered by opponents to be a case of governmental overreach. Texas Lt. Gov. Dan Patrick stated that the Obama administration was “blackmailing” the schools and was engaging in “social engineering.” Mississippi Gov. Phil Bryant directed his state’s education department to simply disregard the federal directive, stating that it was “outrageous.” Some schools installed a third bathroom for use by the transgender children so that the privacy, dignity, and safety of the majority of the students, teachers, and administrators would still be honored and the schools would still receive federal funding.
Fast forward six months to November of 2016 when the people voted in Donald Trump as president. Two months later, on January 31, 2017, the White House issued a statement saying “President Donald J. Trump is determined to protect the rights of all Americans, including the L.G.B.T.Q. community.” Whether that meant keeping the Obama administration’s directive in place or simply upholding laws that were already on the books was unclear. On February 22, 2017, the Departments of Justice and Education revoked the May 13, 2016 federal guidance to schools given under President Barack Obama, giving authority over the matter back to the states. The agencies stated that they revoked the former guidance letter “in order to further and more completely consider the legal issues involved” because that directive had “given rise to significant litigation regarding school restrooms and locker rooms.” The anti-bullying safeguards, however, were to stay in place so as to still protect the transgender children.
The LGBT community said that President Trump was breaking his “promise” made to them in January, viewing only President Obama’s federal-level directive as protection for transgender students. If the president had intended to keep President Obama’s federal directive in place, he apparently changed his mind about the issue being handled at the federal level. The White House said, “returning power to the states paves the way for an open and inclusive process to take place at the local level with input from parents, students, teachers, and administrators.”
Some of the media reported that Education Secretary Betsy DeVos and Attorney General Jeff Sessions were at odds with each other while discussing the matter with the president behind closed doors and that Ms. DeVos had been overruled by Attorney General Jeff Sessions. Ms. DeVos had reportedly been on record as saying that she felt it was their “moral obligation” to protect transgender children (at the federal level). However, White House spokesman Sean Spicer stated that Ms. DeVos was on board with revoking the federal directive.
Even though the guidance that was put in place during the Obama administration was only in effect for nine months, the nation will continue to feel the effects of changes that it brought about on top of the effects of changes being made as a result of its revocation.
Because of the Obama administration directive, fifteen states created explicit laws regarding the protection of transgender students, and some school districts adopted policies that protect the transgender students. In more conservative areas, however, states like North Carolina put a law on the books that limits bathroom usage in government buildings to the sex that was listed on the user’s birth certificate. According to the National Conference of State Legislatures, other states are in the process of following North Carolina’s lead.
As a result of President Trump’s revocation of the directive to the schools, some of the pending court cases that involve federal sex discrimination law are affected. Additionally, some justices may hand cases relating to the issue to lower courts.