Trial of Transgender Bathrooms


Chelsea Viola
National Beat Reporter

Last week, the Trump administration implemented a reversal of legal protections allowing transgender students to use whichever public school bathroom corresponds with their gender identity.

Under the Obama administration, the education and justice departments collaborated on a joint-guidance resource to educate schools on allowing transgender students to use bathrooms that correspond with their gender identity. This ‘Dear Colleague’ memo to staff was addressed to school districts and colleges that receive federal funding.

Obama’s directive was based on an interpretation of the Title IX of Education Amendment Acts of 1972, which expanded sex discrimination to include discrimination based on gender nonconformity, determining that a school’s failure to protect a student from gender-related harassment is a violation of Title IX.

“The Departments treat a student’s gender identity as the student’s sex for purposes of Title IX and its implementing regulations. This means that a school must not treat a transgender student differently from the way it treats other students of the same gender identity,” the memo said.  

The published guidance was based on best practices from school districts across the country that have policies addressing this issue, with the state of California being its leading model.

In 2013, Governor Jerry Brown signed a law that allowed transgender K-12 public school students to choose the restroom and locker room that corresponded with their gender identity. California became the first state in the nation to have such a policy in place at the time.

However, not all states happily complied with Obama’s federal directive. In 2016, Texas Attorney General Ken Paxton sued on the behalf of 10 other states, calling the administrative guidelines “outside the bounds of the Constitution.”  

Paxton ended up winning nationwide injunction that barred federal agencies from taking action against schools that “resisted guidance.” In response, the Obama-led Justice Department filed to challenge the lawsuit and was scheduled for court in February.

Under the new Trump administration, once Alabama Sen. Jeff Sessions was sworn in as U.S. Attorney General, the Justice Department withdrew its challenge.

Trump’s very own ‘Dear Colleague’ letter called to disregard the memos issued during the Obama administration and did not offer a policy to stand in its wake.

The invalidation of Obama’s guidelines was based on the premise that it lacked “extensive legal analysis” on how these policies were consistent with Title IX and referenced the national injunction won by Paxton.

“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,” it said.

The purpose of reversing these Obama-era directives was to “give the power back to the states,” according to Trump.

“The joint decision made today by the Department of Justice and the Department of Education … paves the way for an open and inclusive process to take place at the local level with input from parents, students, teachers and administrators,” the White House said in a statement.

Newly appointed Secretary of Education Betsy DeVos called the Obama-era policies an “overreach” of federal power.

“This issue was a very huge example of the Obama administration’s overreach, a one-size-fits-all, top-down approach,” DeVos said at the Conservative Political Action Conference, reaffirming her dedication to reallocating education deciding power down to the local level.

The reversal of these protective policies has angered many civil groups and members of the LGBTQ community.

“This is a mean-spirited attack on hundreds of thousands of students who simply want to be their true selves and be treated with dignity while attending school,” Mara Keisling, the executive director of the National Center for Transgender Equality, said in a statement.

“We’re not discouraged. And we’re going to keep fighting like we have been and keep fighting for the right thing,” said Gavin Grimm, a Virginian transgender teen who sued his high school over its bathroom access policy. Grimm’s case is scheduled to be heard by the Supreme Court next month.