by Chris Johnson, Washington Blade
Amid concerns the Trump administration would rescind Obama-era instructions for schools asserting federal law requires them to allow transgender students access to the restroom consistent with their gender identity, the White House said Tuesday under questioning from the Washington Blade new guidance is forthcoming based on the principle of states’ rights.
White House Press Secretary Sean Spicer made the remarks as the U.S. Supreme Court is set to review the existing guidance in the case of Gloucester County Schools v. G.G. as well as whether Title IX of the Education Amendments of 1972 — the law on which the guidance is based — assures transgender students access to the restroom corresponding to their gender identity.
“This is an issue that the Department of Justice and the Department of Education are addressing,” Spicer said. “I think that there will be further guidance coming from DOJ in particular with respect not just to the executive order but also the case that is in front of the Supreme Court.”
Spicer said new guidance is forthcoming as LGBT advocates told the Washington Blade the Trump administration would act with the blessing of Trump to rescind the guidance Tuesday.
Jointly issued in May under the Obama administration by the Justice Department and Education Department, the guidance asserts that denying transgender students access to the restroom in accordance with their gender identity violates the prohibition on sex discrimination under Title IX.
Alluding to Trump’s promise on the campaign trail to rescind the Obama-era guidance, but protect everybody, Spicer said the president has believed “for a long time that this is a states’ rights issue and not one for the federal government.”
“So will there be further guidance coming out on this?” Spicer added. “I think all you have to do is look at what the president’s views had been for a long time that this is not something that the federal government should be involved in. This a states’ rights issue.”
Mara Keisling, executive director of the National Center for Transgender Equality, is among the transgender advocates saying a reversal of the guidance would be forthcoming. She criticized Spicer for his remarks.
“Shame on them,” Keisling said. “Spicer is simply and dangerously wrong. Enforcing federal laws like Title IX is a federal duty, not a state-by-state option. A child in Alabama deserves protection as much as a child in New York.”
In a seeming contradiction, Spicer said Trump believes the issue of protections for transgender students is a state issue just weeks after the White House issued a statement declaring Trump is “respectful and supportive of LGBTQ rights” and would keep in place an executive order barring companies doing business with the U.S. government across the country from engaging in anti-LGBT workplace discrimination.
Even if the U.S. government rescinds the guidance, transgender advocates have insisted students are still able to sue under Title IX if they feel they’ve experienced discrimination as a result of their gender identity — unless, of course, the Supreme Court rules that isn’t the case as a result of pending litigation.
Shannon Minter, legal director for the National Center for Lesbian Rights, said deferring to the states “makes no sense” because the issue at hand is the Education Department’s enforcement of federal law.
“Spicer’s statement is nonsensical and just a smokescreen for blatant pandering to Sessions and Pence and others in the administration who want to turn back the clock on LGBT equality,” Minter said. “There is no legal basis for this decision. It is a political decision that flies in the face of federal court decisions across the country and that effectively paints a target on the back of vulnerable young people who are already struggling for acceptance and support.”
Spicer’s remarks are consistent with actions from the Justice Department in litigation filed against the guidance by Texas Attorney General Ken Paxton on behalf of 12 states. As a result of the litigation, U.S. District Judge Reed O’Connor issued a preliminary injunction barring the administration from enforcing the guidance nationwide.
Although the Justice Department under former U.S. Attorney General Loretta Lynch filed an appeal along with a request with the U.S. Fifth Circuit Court of Appeals seeking to limit the scope of the injunction to the 12 plaintiff states, the brief under Sessions withdraws that request and informs the federal appeals court the Trump administration is “currently considering how best to proceed in this appeal.”
Chad Griffin, president of the Human Rights Campaign, chided Trump on Twitter for Spicer’s remarks, referencing the president’s trip earlier in the day to the National Museum of African-American History & Culture as evidence of why the states’ right argument is unacceptable.