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Trump Action on Transgender Students Carries Contradictions

Attorney General Jeff Sessions prevailed in his internecine battle with Education Secretary Betsy DeVos. | SESSIONS.SENATE.GOV

Attorney General Jeff Sessions prevailed in his internecine battle with Education Secretary Betsy DeVos. | SESSIONS.SENATE.GOV

BY ARTHUR S. LEONARD | The Trump administration, in line with statements that candidate Donald Trump made opining that the issue of restroom and locker room access by transgender students should be left up to state and local officials, issued a letter to all the nation’s school districts on February 22 withdrawing two letters issued by the Obama administration over the last several years that had put the federal government’s weight behind the rights and dignity of trans youth.

The two Obama administration communications that the new Trump regime retreated from were one on January 7, 2015 from the Department of Education regarding Virginia high school student Gavin Grimm’s transgender rights litigation and a May 16, 2016 “Dear Colleague” letter sent jointly by the DOE and the Department of Justice to the nation’s school districts.

The Obama administration letters conveyed its position that educational institutions receiving federal money must allow transgender students and staff to use facilities consistent with their gender identity. That position was based on Title IX of the Education Amendments of 1972, a statute banning sex discrimination by educational institutions that receive federal money, as well as a DOE regulation issued under Title IX governing sex-segregated facilities in those educational institutions. That regulation says that educational facilities may have sex-segregated facilities, so long as they are “equal.”

Bathroom access issue set to go before Supreme Court March 28, with impact of new administration’s retreat unclear, perhaps irrelevant

The new letter from the Trump administration states that the DOJ and the DOE “have decided to withdraw and rescind the above-referenced guidance documents in order to further and more completely consider the legal issues involved. The Departments thus will not rely on the views expressed within them.”

The Trump letter goes further to state that “in this context, there must be due regard for the primary role of the States and local school districts in establishing educational policy.”

The new administration was at pains, however, to argue that its position was not a rejection of any concern about the well-being of transgender students. The letter stated, “All schools must ensure that all students, including LGBT students, are able to learn and thrive in a safe environment,” and insisted that the withdrawal of the Obama guidance documents “does not leave students without protections from discrimination, bullying, or harassment.” The Office of Civil Rights within the DOE, the letter stated, “will continue its duty under law to hear all claims of discrimination and will explore every opportunity to protect all students and to encourage civility in our classrooms.”

In what could lead to significant confusion regarding the Trump administration’s view of how Title IX should be interpreted, the letter asserted that the two departments “are committed to the application of Title IX and other federal laws to ensure such protection.”

On the same day that the letter was released, however, press secretary Sean Spicer said the administration is analyzing its overall position on Title IX, which could result in a parting of ways from the Obama administration’s view that Title IX prohibits gender identity discrimination in schools.

Thus, an internal contradiction seems to be at play. The letter at least implies that sexual orientation and gender identity discrimination do violate Title IX, but that the question whether transgender students should be allowed access to sex-segregated facilities consistent with their gender identity needs further study. The Trump administration might choose to address the issue in a new regulation accompanied by detailed analysis and subjected to the terms of the federal Administrative Procedure Act, which requires the publication of proposed rules, public comment and hearing, and final publication in the Federal Register. That process would allow Congress several months during which it could intervene to block a new regulation the Republican majorities there oppose.

Also on February 22, the Solicitor General’s Office, which represents the government in Supreme Court cases, informed the high court that the Obama administration guidance documents had been withdrawn, that the views expressed in them would no longer be relied upon by the DOJ and DOE, and that, instead, the administration would “consider further and more completely the legal issues involved.”

This letter comes just six weeks before the Supreme Court argument scheduled for March 28 in Gloucester County School District v. G.G., the Gavin Grimm case, and just before the due date for the solicitor general to file an amicus brief presenting the government’s position on the issues before the high court.

Grimm filed suit against the school district where he is now a senior in response to his school’s imposition of a policy under which he is not allowed to access the boys’ bathroom. The Fourth Circuit Court of Appeals sided with Grimm, finding that the federal courts should defer to the position established by the Executive Branch.

The Supreme Court could react to these developments in a variety of ways. Since the government is not a party in the case, it might just ignore the solicitor general’s letter and go ahead with the argument. Or it might consider that this development renders moot one or both of the questions on which it granted review, which could lead to a reshaping of the case to focus solely on the appropriate interpretation of Title IX and its underlying regulation regarding sex-segregated facilities. It might even decide that the entire case should be sent back to the Fourth Circuit for reconsideration in light of these developments.

The new “Dear Colleague” letter, sent over the signatures of Acting Assistant Secretary for Civil Rights Sandra Battle from the Education Department and Acting Assistant Attorney General for Civil Rights T.E. Wheeler, II in the Justice Department, shows evidence of compromise, reflecting what has been reported as a battle between Betsy DeVos, the recently-confirmed secretary of education, and Jeff Sessions, the new attorney general. Several media sources reported that DeVos did not want to withdraw the Obama administration guidance, but that Sessions was determined to do so.

In light of his record on LGBTQ issues as a US senator and former attorney general of Alabama, Sessions appears bent on reversing the numerous Obama administration regulations and policy statements extending protections to LGBTQ people under existing laws. It was probably a big disappointment to him that the president decided not to rescind, out and out, Obama’s executive order imposing sexual orientation and gender identity nondiscrimination obligations on federal contractors, though we may not have heard the last on that issue.

DeVos, by contrast, reportedly has some sympathy on LGBTQ issues, despite the political views of her family, who are major donors to anti-LGBTQ organizations. According to press accounts, for example, in Michigan, where she was a longtime state Republican Party chair, she intervened on behalf of a gay party official whose position was endangered when he married his partner.

Several newspapers and websites have reported that Sessions brought his dispute with DeVos to the president, who resolved it in favor of the attorney general, leaving it to them to work out the details. Trump was undoubtedly responding to the complaints of many Republicans –– and religious conservative leaders to whom the president pledged fidelity during the campaign –– that the Obama administration had “overreached” in its executive orders and less formal policy statements, going beyond the bounds of existing legislation to “make new law” in areas where Congress had refused to act and, in the process, overriding state and local officials on a sensitive issue. Republicans in both houses of Congress have bottled up the Equality Act, a bill that would add sexual orientation and gender identity as explicitly forbidden grounds for discrimination in a broad range of federal statutes, including Title IX.

Even though the February 22 letter withdraws the Obama guidance documents, it does not articulate a firm position on how Title IX should be interpreted, either generally in terms of gender identity discrimination or specifically regarding access to sex-segregated facilities, such as restrooms and locker rooms. It does, however, criticize the previous guidance for failing to “contain extensive legal analysis or explain how the position is consistent with the express language of Title IX.”

The letter also points out that the Obama guidance did not “undergo any formal public process,” a reference to the cumbersome and time-consuming Administrative Procedure Act steps that are necessary to issue formal regulations that have the force of law –– and on which the Trump administration might rely going forward.

Though the policy the Obama administration developed did not have the force of law, it communicated to schools the view that Title IX bars gender identity discrimination and requires access to facilities consistent with a person’s gender identity, which meant that the DOE or the DOJ might initiate litigation or seek suspension of federal funding against districts that failed to comply. In the end, it would be up to the courts to decide whether to follow that interpretation.

It is important to note that federal courts have found an “implied right of action” by individuals to bring suit to enforce their rights under Title IX. That is not changed by the Trump administration actions this week.

Gavin Grimm’s effort to access a bathroom consistent with his gender identity is scheduled to go before the Supreme Court on March 28. | ACLU.ORG

Gavin Grimm’s effort to access a bathroom consistent with his gender identity is scheduled to go before the Supreme Court on March 28. | ACLU.ORG

When the Fourth Circuit ruled in the Grimm cast last May, it found that District Judge Robert Doumar should not have dismissed the high school student’s Title IX complaint but rather deferred to the interpretation from the DOE, which last January informed Doumar of its position. The Title IX regulation on sex-segregated facilities was ambiguous on the question of transgender access and the DOE’s interpretation –– relying on federal appeals court and administrative agency decisions under other sex discrimination statutes finding that gender identity discrimination was a form of sex discrimination –– was “reasonable,” the Fourth Circuit concluded. The appeals panel did not come to a conclusion as to whether it was the “correct” interpretation.

The Gloucester County School District petitioned the Supreme Court to review that ruling.

The Supreme Court agreed to consider both whether deference to an informal letter from the DOE was appropriate and whether the DOE’s interpretation of Title IX and the sex-segregated facility regulation was correct. With the letter having been withdrawn, the deference question may be moot, though the Trump administration letter does implicitly raise a new question –– whether the courts should defer to it instead.

The underlying question of how Title IX and the sex-segregated facility regulation adopted under it should be interpreted is very much alive, with several courts around the country considering the question in cases filed by individual transgender students, states, and the Obama administration in its challenge to North Carolina’s HB2.

In separate suits filed in federal court, two groups of states are challenging last May’s “Dear Colleague” letter to the nation’s school districts. In one of those lawsuits, with Texas as the lead plaintiff, Judge Reed O’Connor of the Northern District of Texas last August ruled that the state plaintiffs were likely to succeed in their challenge and issued a nationwide preliminary injunction forbidding the federal government from enforcing its Title IX interpretation in any new investigation or case. The Trump administration had earlier withdrawn the Obama DOJ’s appeal of that injunction, but with the bathroom access guidance now also withdrawn, Reed would likely grant a motion to dismiss the case based on it being moot.

O’Connor’s order, however, never had any effect on the ability of non-governmental plaintiffs, such as Gavin Grimm, to file suit under Title IX.

In North Carolina, the Obama administration, former Governor Pat McCrory, Republican state legislative leaders, a group representing parents and students opposed to transgender restroom access, and transgender people represented by public interest lawyers had all filed lawsuits challenging or defending HB2. That statute barred localities from providing nondiscrimination protections that are broader than those established under state law, which does not cover the LGBTQ community, and specifically singled out the transgender community, limiting access to public bathrooms based on the gender designation on an individual’s birth certificate.

The Trump administration’s February 22 actions may signal that the federal government will either abandon or cut down on the scope of its lawsuit challenging the North Carolina law. Since North Carolina is in the Fourth Circuit, all of the HB2 cases are likely to be affected by any reconsideration of the transgender facilities access issue by that circuit in light of these new developments out of Washington.

Elsewhere around the nation, several pending lawsuits have been put “on hold” by federal district judges as well, while awaiting Supreme Court action on the Grimm case. If the Supreme Court were to reject the argument that “sex discrimination” in a statute can be broadly construed to encompass gender identity, these cases, arising under either Title IX or the equal employment provisions of Title VII of the 1964 Civil Rights Act, may be dismissed.

Since the confirmation hearing for 10th Circuit Judge Neil Gorsuch, nominated by Trump for the Supreme Court vacancy, is scheduled to take place on March 20 and Democratic opposition may stretch out the confirmation process, it seems likely that there will be only eight members on the Supreme Court to consider the Grimm case. In that event, it was widely predicted that the result would be either a tie, affirming the Fourth Circuit without any opinion or establishment of a national precedent, or a 5-3 vote with an opinion most likely from Justice Anthony Kennedy, joining with the more liberal justices to adopt the more expansive reading of Title IX.

However, this will be the first time the Supreme Court has directly tackled a gender identity question under sex discrimination laws, so predicting how any justice may vote is completely speculative. What is clear, however, is that the Trump administration’s action this week does not necessarily impact how the Grimm case will play out at the high court.

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