What happens if Trump pulls transgender bathroom guidance?


WASHINGTON (AP) — The Trump administration plans to lift an Obama-era directive that told public schools to let transgender students use bathrooms and locker rooms that match their chosen gender identity.

That Obama guidance will be rescinded, though anti-bullying safeguards will not be affected by the change, a government official with knowledge of the Trump administration’s plans told The Associated Press. The official was not authorized to speak publicly about the plans and did so on condition of anonymity.

Although the Obama directive carried no force of law, transgender rights advocates say it was necessary to protect students from discrimination. Opponents argued it was an example of federal overreach.

President Donald Trump believes the issue is for states to decide without the involvement of the federal government, the White House said.

Here’s a look at the issue and what could happen:



About 150,000 young people — 0.7 percent of those between the ages of 13 and 17 — in the United States identify as transgender, according to a study by The Williams Institute at the UCLA School of Law.

The Obama administration last May told public schools to grant bathroom access even if a student’s chosen gender identity isn’t the same as what’s in their record. The Obama administration’s guidance was based on its determination that Title IX, the federal law prohibiting sex discrimination in education and activities, also applies to gender identity.

Obama’s guidance was not legally binding but sent a warning that schools could lose funding if they did not comply with the administration’s interpretation of the law.

Republicans immediately pushed back, arguing it was an example of the Obama administration meddling in local matters. Texas Lt. Governor Dan Patrick equated it to “blackmail” and said at the time that the state was ready to forfeit federal education money rather than comply with the guidance.

Thirteen states sued to challenge the directive.



The change in position will have no immediate impact, as a federal judge in Texas temporarily blocked the Obama guidance in August.

But it could have consequences for unresolved court cases dealing with Title IX.

They include a case set to be heard by the Supreme Court in March involving a transgender teen who was denied a choice of bathroom access in Virginia.

Courts are unsettled about whether, in the absence of guidance from the federal government, anti-discrimination laws require schools to allow students to use bathrooms and locker rooms based on their gender identity. The high court could decide not to hear the case and direct lower courts to decide that question instead.

Similar lawsuits are still playing out across the country.



Even without the guidelines, advocates say federal law will still prohibit discrimination against students based on their gender or sexual orientation.

“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,” Vanita Gupta, who was head of the Justice Department’s Civil Rights Division when the guidance was issued, said in a statement.

Without the guidance, school districts could face new lawsuits as districts try to sort through the confusion, said Rachel Tiven, CEO of the LGBT advocacy group Lambda Legal.



A patchwork of state laws dealing with the bathroom issue will continue to emerge.

Fifteen states have explicit protections for transgender students in their state laws, and many individual school districts in other states have adopted policies that cover such students on the basis of their gender identity, said Sarah Warbelow, legal director of the Human Rights Campaign. In the states that protect transgender rights, the general approach is to let individuals decide for themselves their gender identity. That’s also how the Obama guidance viewed gender identity for students who are too young for reassignment surgery.

Just one state, North Carolina, has enacted a law restricting access to bathrooms in government-owned buildings to the sex that appears on a person’s birth certificate. But so far this year, lawmakers in more than 10 states are considerin

By Sadie Gurman and Maria Danilova

Associated Press

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