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Trump Administration Rescinds Guidance on Bathroom Use for Transgender Students

Last year, amid a flurry of legal action and confusion, educators, parents, and students around the country requested guidance from the Department of Education on bathroom policies for transgender students. The Obama administration issued that guidance in May, asserting that public schools receiving federal funds must treat students according to their gender identity (not necessarily their sex), and failure to do so would amount to sex discrimination in violation of Title IX. This means students must be given access to bathrooms corresponding to their gender identity.

The Trump Administration rescinded those guidelines this week, yet declined to issue any new directives. That means it will likely be up to the courts to decide the issue.

Colleagues

The two-page "Dear Colleague" letter from the Trump's Department of Education and Department of Justice overturns previous letters from the Obama Administration, claiming they failed to "contain extensive legal analysis or explain how the position is consistent with the express language of Title IX, nor did they undergo any formal public process."

While Title IX bans sex discrimination in education, whether those protections extend to a person's gender identity has been contested legally and politically. Obama-era instructions, from federal hiring of contractors to workplace bathroom access, consistently held that discrimination based on transgender status or gender identity amounted to sex discrimination under federal law.

But new Attorney General Jeff Sessions said in a statement that the Obama guidelines "did not contain sufficient legal analysis or explain how the interpretation was consistent with the language of Title IX." Therefore the Justice and Education departments "decided to withdraw and rescind the above-referenced guidance documents in order to further and more completely consider the legal issues involved."

Courts

Absent any new guidance from the Trump Administration, that consideration will likely happen in the courts. The Obama guidelines were put on hold after thirteen states led by Texas sued and a federal court in Texas issued a nationwide injunction blocked their full implementation. There is also a case pending in the Supreme Court regarding a transgender boy's access to male bathrooms in school. Oral arguments in that case are scheduled for March 28.

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