Just one day after Jeff Sessions was sworn in as U.S. attorney general, Sessions’ Justice Department withdrew a request to partially halt an order against the Obama administration’s protections for transgender students, which included non-discrimination guidelines for schools and assurances that transgender students could use restrooms consistent with their gender identity.
Sessions’ immediate attempted redaction of the guidelines signals a major shift in tone and policy potentially affecting transgender and other LGBTQ citizens under Donald Trump’s administration—a stark contrast to the many progressive actions taken by Barack Obama’s administration to improve the lives of LGBTQ people through measurable federal moves. It also calls into question how the Trump administration will proceed on protections for transgender students and so-called “bathroom laws.” And while the brief will not immediately impact any school districts or their students, its ultimate outcome could influence several other cases across the nation in which students are challenging school district’s discriminatory policies on transgender rights.
Filed in the Court of Appeals for the 5th Circuit, the brief came as part of an ongoing lawsuit by 12 states opposed to Education Department guidance issued in 2016 that directed U.S. public schools to allow transgender students to use bathrooms of their choice. The Obama administration’s Justice Department posited that banning students from bathrooms matching their gender identity violated Title IX, the federal law that prohibits “sex discrimination” in public schools. In direct opposition, on Friday, U.S. District Judge Reed O’Connor instituted a nationwide order barring the federal government from enforcing the guidance, claiming that the Obama administration overextended its authority by including transgender students under the umbrella of Title IX’s definitions of “sex discrimination.” The Obama administration’s brief called for only a partial stay, so the pending decision would—for now—only effect the 12 plaintiff states in the case: Alabama, Georgia, Louisiana, Oklahoma, Tennessee, Utah, West Virginia and Wisconsin, plus the Arizona Department of Education, Maine Gov. Paul LePage and Mississippi Gov. Phil Bryant on behalf of their states.
Human Rights Campaign (HRC) President Chad Griffin immediately pointed out how this slippery move by the Justice Department was directly propagated by Jeff Sessions and motivated by his deep-rooted (and proven record of) bias toward the LGBTQ community.
“After being on the job for less than 48 hours, Attorney General Jeff Sessions has signaled his intent to undermine the equal dignity of transgender students,” Griffin said. “Transgender students are entitled to the full protection of the United States Constitution and our federal nondiscrimination laws. It is heartbreaking and wrong that the agency tasked with enforcing civil rights laws would instead work to subvert them for political interests. President Trump must immediately reverse course and direct the DOJ to uphold guidance protecting transgender students.”
The brief, filed jointly by the Trump administration on Friday, withdraws the request for a partial stay, pending appeal. Additionally, it seeks to cancel oral arguments on the request scheduled for Feb. 17, alleging that parties are “considering how to best proceed.”
Interviewing with The Washington Post last May, Donald Trump stated he thought it was important to protect the rights of transgender people, but decisions on how to apply protections for transgender students in schools should be made by individual states.
“[Y]ou’ve got to protect all people, even though it’s a tiny percentage of 1 percent,” Trump said to The Post. “I think from that standpoint, [states] should come up with a policy that’s going to work for everybody and protect people.”
According to The Post, “He repeatedly said during the interview he thought most states would ‘make the right decisions.’”