Sexual discrimination in education is prohibited by Title IX of the Education Amendments of 1972. The Obama administration interpreted Title IX to include transgender students and instructed public schools to permit transgender students to use bathrooms and locker rooms that matched their gender identities. However, the Trump administration has rejected that interpretation, in effect removing federal protection for transgender students’ bathroom rights.
The Department of Education and the Department of Justice (DOJ) have notified the Supreme Court and the nation’s public schools that the Civil Rights Division (DOJ) will not enforce the previous Title IX guidelines. They say those guidelines caused confusion about how they should be applied, and the confusion led to lawsuits. The Departments will consider more completely the legal issues involved.
Rescinding the guidelines leaves the states or individual school districts to decide if students will have access to bathrooms based on their gender identities or their biological sex. The White House said that withdrawing the guidelines opens the door for decision-making at the local level with input from parents, students, teachers, and administrators.
Conservatives were pleased with the change, saying the Obama interpretation violated the rights of fixed-gender students.
Revocation of the guidance was protested by activists outside the White House. One placard read, “Respect existence or expect resistance.” Although the guidance did not have force of law, advocates of transgender rights say it was useful and necessary to protect students from discrimination.
According to Sarah Warbelow, legal director of the Human Resources Campaign, fifteen states have laws that cover students on the basis of their gender identity as do many individual school districts in other states. The National Conference of State Legislatures reports that 10 states are considering such legislation. North Carolina is the only state with a law restricting access to bathrooms in government-owned buildings to the sex that appears on the user’s birth certificate.