By Chris Johnson, Washington Blade
House Minority Leader Nancy Pelosi (D-Calif.) said Tuesday the U.S. Justice Department’s decision to reverse course in litigation to defend Obama administration guidance barring schools from discriminating against transgender students is “deeply disappointing.”
In an exclusive statement to the Washington Blade, Pelosi also made news about a friend-of-the-court brief House Democrats have prepared on behalf of transgender student Gavin Grimm in a related case pending before the U.S. Supreme Court.
“It is deeply disappointing that the Department of Justice is not taking every opportunity to fight discrimination,” Pelosi said. “Democrats will keep demanding that the Trump administration advocate for all Americans. From the amicus brief we recently filed in support of civil rights for transgender students to confronting bigotry and discrimination wherever it is practiced, House Democrats will never stop fighting for LGBT equality.”
Pelosi made the remarks in response to the Justice Department on Friday withdrawing a request to halt a court order against Obama administration guidance asserting transgender students can use the restroom consistent with their gender identity.
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 as a result of litigation led by Texas Attorney General Ken Paxton on behalf of 12 states, U.S. District Judge Reed O’Connor issued a nationwide injunction last year barring enforcement of the guidance. In response, the Justice Department under former U.S. Attorney General Loretta Lynch appealed the decision to the U.S. Fifth Circuit Court of Appeals and sought a stay limiting the order to the states that sued over the guidance.
On Friday, less than 48 hours after the confirmation of U.S. Attorney General Jeff Sessions, the Justice Department reversed course, filing a subsequent brief withdrawing the request for a stay and announcing the department 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.
The White House hasn’t responded to repeated requests to comment on whether President Trump supports the Justice Department’s decision to reverse course in the litigation. On Monday, a quartet of groups — the Human Rights Campaign, GLSEN, the National Center for Transgender Rights and the National Women’s Law Center — sent a letter to the Justice Department and the Education Department urging the Trump administration to keep the guidance.
Even though the O’Connor order bars the U.S. government from asserting Title IX applies to transgender students, transgender advocates have insisted students are still able to sue on their own under that law if they feel they’ve experienced discrimination as a result of their gender identity.
Meanwhile, a Pelosi aide said she signed a House Democratic friend-of-the-court brief prepared by Rep. Jared Polis (D-Colo.), the longest serving openly gay member of the U.S. House, in the case of Gloucester County School Board v. G.G. In that related case before the Supreme Court, Grimm, a transgender student, is suing his Virginia school to use the restroom consistent with his gender identity.
The Washington Blade couldn’t obtain additional information about this brief at the time of this posting. The deadline for filing friend-of-the-court briefs in this case on behalf of Grimm is March 2.