White House withdraws Obama-era request in transgender student bathroom case

President Trump's administration is withdrawing an Obama-era request in an ongoing lawsuit over bathroom rights for transgender students in public schools.

Elaine Thompson/AP/File
A new sticker designates a gender neutral bathroom at Nathan Hale High School in 2016 in Seattle.

The Trump administration's decision to withdraw on Friday an Obama-era motion in federal court could signal a shift ahead in how the White House addresses transgender students and their bathroom rights in public schools, observers say.

The Obama administration had challenged a nationwide injunction a federal judge in Texas issued in August that restricted transgender students from using locker and bathrooms that correspond with their gender identity. The filing from the Justice Department on Friday, a day after Jeff Sessions was sworn in as attorney general, asked to withdraw that challenge because “the parties are currently considering how best to proceed in the appeal,” the department said in a legal brief to the Fifth Circuit Court of Appeals.

President Trump has sent mixed signals for how he and his administration would approach the societal debate over transgender rights. During his campaign, Mr. Trump was considered the most pro-LGBT of all 17 Republican candidates, a distinction his administration referred to as recently as earlier this month. But he also has promised to rescind the Obama directive about transgender students’ bathroom rights, which told schools to allow students to use the restroom that aligns with their gender identity.

Now, transgender rights advocates say the Justice Department’s motion offers an indication of where it stands.

“Our concern is that it’s a very clear signal that at a minimum the Department of Justice – and possibly more broadly throughout the Trump administration – will not protect transgender students,” Sarah Warbelow, the legal director for the Human Rights Campaign, a leading LGBT advocacy group, told the Associated Press.

The motion the Justice Department asked to withdraw on Friday requested that US District Judge Reed O’Connor’s temporary injunction be scaled back to only the 13 states that sued former President Barack Obama’s directive. The directive the Department of Education issued in May interpreted Title IX, the federal law that bans sex discrimination in schools, to protect transgender students. Under the Obama administration’s interpretation of the law, transgender students must be given access to bathrooms and locker rooms that correspond with their gender identity. The directive warns schools that if they prevent transgender students from doing so, they risk losing federal money.

But Texas and 12 other states filed a lawsuit last year challenging the directive. In the August ruling, Judge O'Connor agreed with the 13 states and issued a temporary injunction. O'Connor said Title XI “is not ambiguous” about sex being defined as the “biological and anatomical differences between male and female students as determined at their birth.”

The ruling, he said, was not about the policy issues of transgender rights. He concluded that federal officials did not follow rules about providing a period for comment before issuing the directive.

Oral arguments in the case are scheduled to begin on Tuesday.

The Trump administration’s step back from the debate comes as so-called “bathroom bills,” which typically restrict transgender people to using bathrooms that correspond with their sex at birth, have been filed in at least eight states, according to the National Conference of State Legislatures.

Many of those opposed to transgender people using facilities that don’t correspond to their birth sex worry about safety. But critics point to several investigations, including one by the Charlotte Observer, that found that argument flawed.

“We haven’t found any instances of criminals convicted of using transgender protections as cover in the United States. Neither have any left-wing groups or right-wing groups,” the Observer wrote. “There was one incident in Canada, involving a rapist. In the US, there have been a few yet-unproven allegations.”

While transgender advocates worry the motion withdrawal shows where the Trump administration stands on this policy issue, the president has offered conflicting clues in the past. He has promised to rescind the Department of Education directive, according to Reuters. But earlier this month, his staff issued a statement emphasizing his support for the LGBT community, amid concerns about a draft of an executive order to extends religious freedoms, which some fear could be lead to discrimination against LGBT individuals.

"President Trump continues to be respectful and supportive of LGBTQ rights, just as he was throughout the election," the White House announced in a statement. "The president is proud to have been the first ever GOP nominee to mention the LGBTQ community in his nomination acceptance speech, pledging then to protect the community from violence and oppression."

The next venue the transgender issue will likely play out is in the US Supreme Court. In March, SCOTUS is scheduled to hear oral arguments about a transgender rights case. The dispute involves Gavin Grimm, a transgender high school student in Virginia, and the Gloucester County School Board. The school board wants to prevent Gavin, who was born a female but identifies as male, from using the boys’ bathroom in a high school. His school asked him to use a private restroom instead. A lower court ordered ruled in Gavin's favor in August, but the school board has appealed to the Supreme Court.

Oral arguments are also expected to overlap with Neil Gorsuch’s confirmation hearings to replace the vacancy left on the high court by the death of Justice Antonin Scalia. Court observers expect transgender rights to come up at the confirmation process of Mr. Gorsuch, Trump’s nominee, since he could be on the court when the case is decided.   

This report includes material from the Associated Press and Reuters.

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