Following a signal from the U.S. Justice Department that guidance protecting transgender students may be on the chopping block, a trio of LGBT groups — as well as an LGBT-supportive women’s organization — are calling on the Trump administration to keep the policy in place.
The letter, dated Feb. 13, is addressed to newly confirmed U.S. Attorney General Jeff Sessions and Education Secretary Betsy DeVos, who would be responsible for any decision to rescind the guidance.
“The Departments’ guidance documents help educational institutions understand and comply with the law,” the letter says. “Under Title IX, all forms of gender-based discrimination are prohibited unless specifically exempted by statute. This includes sexual violence, sexual harassment, and bullying and harassment based on gender. It also includes discrimination against the hundreds of thousands of students who were assigned one gender at birth but who live and attend school as another.”
The letter was signed by Mara Keisling, executive director of the National Center for Transgender Equality; Nancy Duff Campbell and Marcia Greenberger, co-presidents of the National Women’s Law Center; Eliza Byard, executive director of GLSEN; and Chad Griffin, president of the Human Rights Campaign.
In May, the Departments of Justice and Education under President Obama issued guidance saying schools are barred from discriminating against transgender students, including in bathroom use, under the prohibition of gender bias in Title IX of the Education Amendments of 1972. That means schools refusing to allow transgender students to use the restroom consistent with their gender identity are at risk of losing federal funds.
But legal challenges to the guidance quickly followed, led by Texas Attorney General Ken Paxton, who argued the Obama administration overextended its authority under Title IX. As a result, Judge Reed O’Connor placed a nationwide injunction on enforcement of the guidance, although the Obama administration appealed and requested a partial stay from the Fifth Circuit limiting the impact of the order.
Less than 48 hours after Sessions was confirmed as attorney general, the Justice Department filed a brief withdrawing its request for a partial stay on the order and is “currently considering how best to proceed in this appeal.” That could be the first indication the Trump administration intends to rescind the guidance, which was among President Trump’s anti-LGBT campaign promises.
Pointing to comments made by DeVos after confirmation in which she called for “acting justly, being compassionate and moving forward humbly on behalf of the future of our nation – America’s students,” the letter from LGBT advocates says a “withdrawal of this critical guidance would represent a major retreat from these commitments.”
In response to the letter, spokespersons for the Justice Department and Education Department said the Trump administration has received letter and is reviewing it.
The White House hasn’t responded to repeated requests from the Washington Blade to comment on whether President Trump supports the Justice Department’s withdrawal of the request for a stay.