By EMILY WILKINS AND TODD RUGER
CQ ROLL CALL
The Trump administration on Wednesday withdrew Obama-era guidance directing public schools to allow transgender students to use the bathroom that matches their gender identity, a move that changes a pending Supreme Court case on the contentious social issue.
A letter from the administration to the Supreme Court on Wednesday included a memo from the Education and Justice departments formally withdrawing the guidance.
The Obama administration issued the guidance amid legal challenges to state laws about transgender bathroom use that had sparked a national debate on the issue, but it never went into effect because of a legal challenge from Texas and other states.
The guidance is a key part of the case set for oral arguments at the Supreme Court on March 28. A transgender student from Virginia named Gavin Grimm is challenging his school district’s policy on transgender bathroom use as violating a 1974 federal anti-discrimination law.
Education Secretary Betsy DeVos said in a statement Wednesday that protecting all students — “including LGBTQ students” — is a priority, but the Obama-era guidance raised legal questions that led a federal judge to place an injunction on the counsel in August.
“This is an issue best solved at the state and local level,” she said. “Schools, communities, and families can find — and in many cases have found — solutions that protect all students.”
DeVos added that the department’s Office for Civil Rights will continue to investigate all claims of discrimination or bullying. The letter from the Justice and Education departments states the guidance is rescinded “in order to further and more completely consider the legal issues involved.”
Letters from the Obama administration sent May 13 told public schools to allow transgender students to use the bathroom consistent with their gender identity. The Obama administration said it issued the guidance in response to questions from schools about the best policies for transgender students, and it also touched on school obligations for transgender students’ participation in athletics, single-sex classes and housing and overnight accommodations.
The withdrawal of the guidance does not come as a surprise. The Trump administration indicated earlier this week that the guidance would be scrapped. Several weeks ago, the Justice Department dropped its opposition to the injunction.
Rep. Bradley Byrne, a member of the House Education and the Workforce Committee, agreed with DeVos that the issue should be left to localities.
“This is the right decision,” the Alabama Republican said in a message posted on Twitter. “This is an area where the federal government simply shouldn’t be involved.”
But several Democrats, including House Minority Leader Nancy Pelosi, have pushed back against the administration’s decision.
“This is not a state issue. This is an issue of equality for all,” she said in a statement. “The administration’s wanton disregard of protecting the civil rights of the LGBT community is harmful to our communities and our schools.”
Washington Sen. Patty Murray, the ranking Democrat on the Health, Education, Labor and Pensions Committee, said in a statement that “rolling back this guidance on protecting transgender students would be absolutely wrong and should not be done.”
The American Civil Liberties Union, which represents Grimm in the Supreme Court case, said the Trump administration action did not mean that federal law has changed, and urged schools that have protected the rights of transgender students to continue to do so.
“Revoking the guidance shows that the president’s promise to protect LGBT rights was just empty rhetoric,” James Esseks, director of the ACLU’s LGBT & HIV Project, said in a statement. “School districts that recognize that should continue doing the right thing; for the rest, we’ll see them in court. We will continue to fight for the rights and dignity of transgender youth, especially now that the Trump administration has decided to turn its back on them.”
The ACLU maintains that the Supreme Court can still decide the Grimm case based on Title IX of an anti-discrimination law passed in 1974. But the justices also could decide to no longer hear the case, or send it back to the U.S. Court of Appeals for the 4th Circuit to reconsider its ruling that used the Obama administration guidance to side with Grimm, said Josh Blackman, a professor at the South Texas College of Law Houston.
Reports emerged Wednesday that DeVos was hesitant to rescind the guidance. During her confirmation hearing last month, she told lawmakers that “all students, no matter their age, should be able to attend a school and feel safe and be free of discrimination.”
White House Press Secretary Sean Spicer refuted the claims that department heads were not on the same page and said DeVos was on board “100 percent.”
“Where you might be hearing something is more on the timing and the wording of stuff,” Spicer said. “The conclusions, everybody in the administration is agreed upon. There is no daylight between anybody, between the president, between any of the secretaries.”