DOJ brief sig­nals a pol­icy shift for trans­gen­der stu­dents

The Washington Post Sunday - - POLITICS & THE NATION - BY SANDHYA SO­MASHEKHAR AND MO­RIAH BALIN­GIT sandhya.so­mashekhar@wash­post.com mo­riah.balin­git@wash­post.com

The Trump ad­min­is­tra­tion sig­naled Fri­day that it was chang­ing course on the pre­vi­ous ad­min­is­tra­tion’s ef­forts to ex­pand trans­gen­der rights, sub­mit­ting a le­gal brief with­draw­ing the gov­ern­ment’s ob­jec­tions to an in­junc­tion that had blocked a re­quire­ment that trans­gen­der stu­dents be al­lowed to use re­strooms that match their gen­der iden­tity.

The move by the Jus­tice Depart­ment does not im­me­di­ately change the sit­u­a­tion for the na­tion’s pub­lic schools, as a fed­eral judge had al­ready put a tem­po­rary hold on the di­rec­tive as a law­suit by a dozen states moved through the courts.

But it sug­gests that the Trump ad­min­is­tra­tion will take a dif­fer­ent ap­proach on the hotly con­tested is­sue of trans­gen­der rights, which many con­ser­va­tives thought went too far un­der the Obama ad­min­is­tra­tion.

And how the Trump ad­min­is­tra­tion de­cides to pro­ceed on the par­tic­u­lar is­sue of trans­gen­der stu­dents and bath­room use would af­fect sev­eral other cases in which stu­dents are chal­leng­ing their school dis­tricts’ poli­cies, in­clud­ing one in­volv­ing Vir­ginia stu­dent Gavin Grimm, which is sched­uled to be heard by the Supreme Court later this spring.

The brief, filed in the U.S. Court of Ap­peals for the 5th Cir­cuit, came as part of a lon­grun­ning law­suit by 12 states op­posed to Ed­u­ca­tion Depart­ment guid­ance is­sued last year di­rect­ing the na­tion’s pub­lic schools to al­low trans­gen­der stu­dents to use the bath­room of their choice. The Obama ad­min­is­tra­tion took the po­si­tion that bar­ring the stu­dents from bath­rooms that matched their gen­der iden­tity was a vi­o­la­tion of Ti­tle IX, the fed­eral law that pro­hibits sex dis­crim­i­na­tion in pub­lic schools.

U.S. Dis­trict Judge Reed O’Connor had sided with the states and is­sued a tem­po­rary in­junc­tion block­ing the di­rec­tive last year. The Obama ad­min­is­tra­tion ap­pealed the de­ci­sion and asked that the in­junc­tion ap­ply only to those 12 states. Ar­gu­ments in the case were sched­uled to be heard Tues­day in Austin.

But the Jus­tice Depart­ment and the su­ing states said in a joint brief Fri­day that they were with­draw­ing that re­quest. The brief asked the court to can­cel ar­gu­ments, ex­plain­ing that “the par­ties are cur­rently con­sid­er­ing how best to pro­ceed in this ap­peal.”

The re­quest was im­me­di­ately granted, ac­cord­ing to Equal­ity Case Files, a non­profit or­ga­ni­za­tion that pro­vides le­gal up­dates on cases re­lated to gay and trans­gen­der rights.

The de­ci­sion drew im­me­di­ate crit­i­cism from gay and trans­gen­der rights groups.

“This is a cal­lous at­tack on hun­dreds of thou­sands of stu­dents who sim­ply want to be their true selves and be treated with dig­nity while they work to get an ed­u­ca­tion, just like ev­ery other stu­dent,” Mara Keis­ling, ex­ec­u­tive di­rec­tor of the Na­tional Cen­ter for Trans­gen­der Equal­ity, said in a state­ment. “Trans­gen­der stu­dents thrive when treated equally, but too of­ten, they are not.”

That the Trump ad­min­is­tra­tion would re­verse course on the pre­vi­ous ad­min­is­tra­tion’s ef­forts on be­half of trans­gen­der peo­ple is not ex­actly a sur­prise.

In an in­ter­view last May with The Wash­ing­ton Post, Don­ald Trump, then the front-run­ner for the Repub­li­can nom­i­na­tion for pres­i­dent, said it was im­por­tant to pro­tect the rights of trans­gen­der peo­ple but thought the de­ci­sion of how to di­rect schools to deal with trans­gen­der stu­dents was best left up to the states.

“I don’t think so, be­cause you’ve got to pro­tect all peo­ple, even though it’s a tiny per­cent­age of 1 per­cent,” Trump said. “I think from that stand­point, [states] should come up with a pol­icy that’s go­ing to work for ev­ery­body and pro­tect peo­ple.”

He re­peat­edly said dur­ing the in­ter­view he thought most states would “make the right de­ci­sions.”

Grimm, a se­nior at Glouces­ter High in Glouces­ter, Va., sued his school board two years ago af­ter it barred him from the boys’ bath­room. In April, the U.S. Court of Ap­peals for the 4th Cir­cuit sided with Grimm, de­fer­ring to the Obama ad­min­is­tra­tion’s po­si­tion that bar­ring trans­gen­der stu­dents from bath­rooms that align with their gen­der iden­tity is sex dis­crim­i­na­tion.

The school board ap­pealed the case to the Supreme Court, which is sched­uled to hear ar­gu­ments in March.

But it is un­clear what will hap­pen if the ad­min­is­tra­tion’s po­si­tion on trans­gen­der stu­dents rights changes. Joshua Block of the Amer­i­can Civil Lib­er­ties Union, who is rep­re­sent­ing Grimm, said he be­lieves the case still has grounds to move for­ward. But Fran­cisco Ne­gron Jr., chief le­gal of­fi­cer for the Na­tional School Boards As­so­ci­a­tion, said late last year that he is skep­ti­cal.

NIKKI KAHN/THE WASH­ING­TON POST

This spring, the Supreme Court is sched­uled to hear the case of Gavin Grimm, above, a trans­gen­der stu­dent in Glouces­ter, Va., who sued his school board af­ter it barred him from the boys’ bath­room.

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