Why the Trump administration wants to roll back transgender bathroom guidelines

The Trump administrations says transgender laws are better left to the states.

Elaine Thompson/AP
A new sticker is placed on the door at the ceremonial opening of a gender neutral bathroom at Nathan Hale High School in Seattle on May 17, 2016. The Trump administration is considering rolling back federal laws on transgender bathrooms.

President Trump is looking to rollback federal guidelines that allow transgender students to use their bathroom of choice, the White House announced Tuesday. 

Under guidance issued by the Obama administration last May, transgender students are allowed to access restrooms and participate on athletic teams that match with the gender they identify by, not the sex on their birth certificate. In addition, schools were instructed to treat students in a way that corresponds with their expressed gender identity without requiring medical proof. 

Now, the Trump administration is reportedly working on a new set of guidelines on the use of school bathrooms by transgender students. While White House spokesman Sean Spicer did not offer any details on the new directives, which are being prepared by the Justice Department, Mr. Trump has stated in the past that he believes such matters should be left to the discretion of individual states rather than the federal government. 

"I think that all you have to do is look at what the president's view has been for a long time, that this is not something the federal government should be involved in, this is a states' rights issue," Mr. Spicer said on Tuesday.

At the moment, 15 states have explicit protections for transgender students, said Sarah Warbelow, legal director of the Human Rights Campaign, in a statement. In states without explicit protections, many individual school districts have adopted similar policies. While North Carolina is the only state to have enacted a law requiring students to use the bathroom that matches the sex on their birth certificate, lawmakers in more than 10 states are considering similar legislation this year, according to the National Conference of State Legislators. 

During his campaign, the president was a vocal critic of the Obama administration's guidance. In a May interview with Fox News, Trump said he felt the directive was becoming a "massive story" even though it only affected a "tiny, tiny" percentage of the population.

"It's a new issue and right now, I just don't have an opinion. I’d like to see the states make that decision," he said at the time. When asked about North Carolina's law in a separate interview in April, he expressed the belief that "local communities and states should make the decision." 

"I feel very strongly about that," he told Fox News host Sean Hannity. "The federal government should not be involved." 

Trump was considered the most pro-LGBT Republican candidate in the 2016 election – a distinction touted by his team as recently as this month. But his administration had sent mixed signals about how they would approach the debate over transgender rights. Earlier this month, the Trump administration withdrew an Obama-era motion in federal court challenging a nationwide injunction a federal judge in Texas issued in August that restricted transgender students from using locker and bathrooms that aligned with their gender identity, a decision that offered greater clarity regarding the White House's position in the debate.

The announcement on Tuesday, while perhaps not surprising considering earlier promises from Trump to rescind the Obama directive, was immediately denounced by transgender rights advocates. 

"This administration cannot strip away the rights of transgender students by retracting the guidance – the issue is before the courts now and the law has not changed," said Vanita Gupta, who was head of the Justice Department's Civil Rights Division under former President Obama, in a statement. "To cloak this in federalism ignores the vital and historic role that federal law plays in ensuring that all children, (including LGBT students) are able to attend school free from discrimination." 

But the move was applauded by some conservatives who had criticized the Obama administration's guidelines, which they saw as federal overreach and a violation of the privacy and safety of non-transgender students. 

Ryan Anderson, a senior research fellow with the conservative Heritage Foundation, argued that the Obama guidelines were unlawful because Title IX protects students based not on their gender identity, but on their sex. He told the Associated Press that he also felt the Obama-era directive violated the rights of other students, particularly teenage girls who may have previously suffered from sexual abuse and "might not want an anatomical male in the shower or the locker room." 

Mr. Anderson proposes that students, teachers, and parents work out "win-win" solutions at the local level – for example, adding single-occupancy restrooms or locker rooms in schools or letting transgender students use the faculty lounge. 

"We can find a way in which the privacy and safety of transgender students is respected while also respecting the privacy and safety of all other students," he said. 

In a draft of a letter slated to be issued to schools Wednesday, obtained by The Washington Post, the Trump administration writes that administrators, parents, and students "struggled to understand and apply the statements of policy" in the Obama-era guidance. 

The withdrawal of the directive, the letter notes, "does not diminish the protections from bullying and harassment that are available to all students." 

"Schools must ensure that transgender students, like all students, are able to learn in a safe environment," it says. 

This report contains material from the Associated Press. 

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