February 27, 2017

USA: Trump Administration Transgender Guidelines title IX Rescinds Obama Letter Federalism.

National Review
written by Editorial
February 23, 2017

Yesterday the Trump administration preserved federalism, respected the principle of local control over local schools, and corrected one of the Obama administration’s many lawless and radical executive actions. With a simple, two-page letter, the Departments of Education and Justice withdrew and rescinded two Obama-administration letters that purported to unilaterally redefine Title IX of the Education Amendments of 1972. The Obama administration had expanded Title IX’s explicit ban on sex discrimination in federally funded educational institutions to encompass “gender identity” discrimination and then imposed intrusive “guidance” on every federally funded school in the nation, on matters ranging from pronoun usage to eligibility for sports teams and access to showers, bathrooms, and sleeping quarters on overnight trips.

Put plainly, the Obama administration used a letter to rewrite a statute and then applied that letter to every public school in the United States, from kindergarten through college. This is not how one makes law in our constitutional republic. New laws require new statutes, and presidents do not have the power to rewrite old laws at will. At the very least, the Administrative Procedure Act requires that new and substantive agency rules go through a notice-and-comment procedure that gives the public a voice in the regulatory rulemaking process. The Obama administration skipped each of these steps.

Make no mistake, the actions of the Obama administration were both substantive and intrusive. While media often characterize the letter as merely providing “bathroom” guidance, it has affected broad areas of school life and conduct. In requiring schools to create a “supportive” environment for transgender students, it directed, for example, that girls could be forced to shower or change clothes next to anatomically intact males, sleep in the same room as males on overnight trips, and compete against males in sporting events. There was no medical diagnosis or treatment requirement before schools were obligated to treat boys as girls or girls as boys. Instead, the legal requirements locked in the instant the student or the student’s parents notified the school that the student’s “gender identity” differed from his or her biological sex.

The implications for free speech and school curricula were profound, raising a host of questions. If a school tolerated other students “misgendering” a trans student through “improper” use of names or pronouns, was it creating a hostile learning environment? Would the school use the Obama administration’s guidance to attempt to override students’ free-speech rights to dissent from the decree? Did biology textbooks and other educational materials have to change to reflect the new definition of “gender” as an identity distinct from a person’s biological sex? Critically, this federal guidance specifically instructed schools to ignore parental input or parental concerns if parents dissented from the new orthodoxy. The letter was clear: Schools were to provide transgender children “equal access to educational programs and activities even in circumstances in which other students, parents, or community members raise objections or concerns.” This meant that parents who had legitimate concerns about safety, fairness, or even biological reality were left without a voice, even as the policy directly impacted their children’s educational experience.

Repealing the Obama administration’s letter leaves the difficult question of how to deal with gender-nonconforming students exactly where it belongs, with the states and local communities that traditionally control public education. Contrary to the claims of LGBT activists, preserving federalism does not leave transgender students to the mercy of bullies or bigots. As the Trump administration’s letter notes, “schools must ensure that all students, including LGBT students, are able to learn and thrive in a safe environment.” Additionally, it reiterated its legal obligation to “hear all claims of discrimination.” The Trump administration’s proper decision to rescind the Obama administration’s letter should send a clear signal to social-justice activists — what one president gives, the next president can take away. When it comes to serious matters like expanding federal nondiscrimination law, new laws should come only through constitutional process. If you want to change the law, persuade Congress to pass a statute. In our republic, letters are no substitute for lawmaking. If states or local school boards want to recreate the Obama administration’s standards and apply them to their own schools, they are free to do so. If other states or school boards want to leave the difficult decisions to principals and teachers, who know the individuals and parents involved, they are free to do so as well. When it comes to the most delicate matters of student privacy and identity, one size most assuredly does not fit all.
The Washington Examiner
written by Jason Russell
Wednesday February 23, 2017

OXON HILL, Md. — Secretary of Education Betsy DeVos said Thursday that President Trump's move to withdraw Obama-era regulations about transgender students was a critical move to reduce government overreach into an issue that should be handled by states.

"This issue was a very huge example of the Obama administration's overreach to suggest a one-sized-fits-all federal government approach, top-down approach, to issues that are best dealt with and solved at the personal level, the local level," DeVos said at the Conservative Political Action Conference. "It's our job ... to provide students, parents, and teachers with more flexibility around how education is delivered and how that education is experienced, and to protect and preserve personal freedoms."

In a statement Wednesday night, DeVos said, "there is no immediate impact to students by rescinding this guidance," because a federal injunction was issued last summer that prevented President Obama's Education Department from enforcing part of the regulations.

Under Obama, the Education Department sought to mandate by federal guidance that all public schools had to allow transgender students to use the restroom that matches their gender identity, and threatened to pull federal financial aid from schools that didn't follow that guidance.
written by Caitlin Emma
February 22, 2017

The Trump administration has scrapped an Obama directive aimed at protecting the rights of transgender students, telling schools in a guidance letter on Wednesday night that the policy has caused a rash of lawsuits nationwide and needs to be reconsidered.

The Justice and Education departments said in their two-page guidance letter to schools that the Obama administration’s interpretation of federal law — allowing transgender students to use bathrooms and locker rooms in alignment with their gender identity — did not “undergo any formal public process” prior to its release last year and “has given rise to significant litigation.”

“In addition,” the letter adds, “the departments believe that, in this context, there must be due regard for the primary role of the states and local school districts in establishing educational policy.”

Trump’s policy shift comes as the issue of transgender rights is expected to be heard before the Supreme Court next month — and the administration’s move could result in SCOTUS sending the matter back to a lower court.

At the heart of the debate over transgender-student rights is Title IX — a federal law that prohibits sex-based discrimination in educational programs. The Obama administration believed the law bars discrimination based on gender identity. It released a directive last May that told schools they must let transgender students use bathrooms and locker rooms in alignment with their gender identity — as opposed to their gender at birth — in addition to upholding other transgender-student rights.

Former President Barack Obama threatened schools, districts, colleges and universities with the loss of federal funds if they didn’t comply with his administration’s guidance, which was legally non-binding. Nearly half of states sued over the issue, complaining of federal overreach — one of the GOP’s central criticisms of Obama’s presidency.

Obama’s guidance was therefore an obvious target for reversal under President Donald Trump, but the way things played out suggested that newly installed Education Secretary Betsy DeVos was at odds with the Justice Department over whether to rescind the directive. And the apparent split was underscored by the two very different messages that DeVos and Attorney General Jeff Sessions pushed when the Trump administration’s guidance letter was released Wednesday night.

DeVos immediately stressed in a statement and tweeted that LGBT students need to be protected, and that it’s the federal government’s obligation to do so. “We have a responsibility to protect every student in America and ensure that they have the freedom to learn and thrive in a safe and trusted environment,” DeVos said in a statement. “This is not merely a federal mandate, but a moral obligation no individual, school, district or state can abdicate.”

But Sessions stressed a process that centers on Congress and the states. “The Department of Justice has a duty to enforce the law. The prior guidance documents did not contain sufficient legal analysis or explain how the interpretation was consistent with the language of Title IX,” he said in a statement accompanying the guidance. He said DOJ is “committed to the proper interpretation and enforcement of Title IX and to its protections for all students, including LGBTQ students," but he added: “Congress, state legislatures, and local governments are in a position to adopt appropriate policies or laws addressing this issue.”

The Trump administration’s letter to schools stopped short of saying that gender identity isn't protected by Title IX. But it noted that courts have split on the issue — and that a federal court in Texas last year “preliminarily enjoined enforcement of the [Obama] interpretation, and that nationwide injunction has not been overturned.”

The letter was written by Sandra Battle, the Education Department’s acting assistant secretary for civil rights, and T.E. Wheeler, DOJ’s acting assistant attorney general for civil rights. They wrote that the Justice and Education departments plan “to further and more completely consider the legal issues involved.”

The letter also stressed that transgender students must be protected from bullying — language that DeVos pushed to include, according to a source. DeVos voiced similar concerns during her confirmation process last month.

“Please note that this withdrawal of these guidance documents does not leave students without protections from discrimination, bullying or harassment,” the letter said. “All schools must ensure that all students, including LGBT students, are able to learn and thrive in a safe environment.”

DeVos’ statement also addressed bullying specifically: “At my direction, the Department’s Office for Civil Rights remains committed to investigating all claims of discrimination, bullying and harassment against those who are most vulnerable in our schools,” she said.

But the nod to bullying wasn’t nearly enough to satisfy LGBT advocates. They believe that explicit federal protections are critical to safeguarding transgender youth, who are among the most at-risk populations when it comes to bullying and suicide.

“After losing my son, I was compelled to help prevent this from happening to any other parent in any way possible,” said Katharine Prescott, a parent advocate whose transgender son, Kyler, committed suicide after he faced discrimination at his school.

Prescott said she pulled her son out of a traditional classroom after he was “victimized daily by teachers, administrators and peers who did not understand his gender identity.”

“I was gratified to work with the Obama administration to ensure that this life-saving guidance was issued to help schools do the right thing by transgender students,” she said. “I would welcome the chance to share my story with Secretary DeVos and Attorney General Sessions to help them understand the real-life implications of reversing the Title IX guidance for protecting transgender students.”

Mara Keisling, executive director of the National Center for Transgender Equality, said rescinding the Obama directive will cause more confusion for schools and parents. She said the Obama administration waded into the issue last year in response to questions from schools and districts about how to approach transgender-student rights.

Keisling's group organized a rally in front of the White House on Wednesday evening to protest the Trump administration’s decision, and hundreds of people turned out, according to a tweet from the American Civil Liberties Union.

Rep. Ileana Ros-Lehtinen (R-Fla.), who has a transgender son, criticized the Trump administration’s action.

“This lamentable decision can lead to hostile treatment of transgender students, and studies have shown that bullying and harassment can be detrimental to the emotional and physical well-being of teenagers,” the Miami lawmaker said in a statement. “Evidence has shown that acceptance of transgender students lowers their risk of suicide.”

But the conservative group Alliance Defending Freedom, which has filed lawsuits nationwide over the issue, said that rescinding the guidance is “common sense” for parents and students across the country who are concerned with “bodily privacy.”

“The privacy, safety and dignity of young students should be the first concern of every local school official across America,” said Gary McCaleb, ADF's senior counsel. “The Obama administration radically distorted a federal law that was meant to equalize educational opportunities for women, and then forced local officials to intermingle boys and girls within students’ private facilities like locker rooms, hotel rooms on school trips, and restrooms."

“School officials shouldn’t have to fear losing crucial federal funding when they protect all students’ privacy,” he added.

Advocates who've spoken with administration sources told POLITICO that DOJ wanted to withdraw Obama's directive quickly — before the Supreme Court hears arguments in G.G. v. Gloucester County School Board, a case involving Virginia transgender student Gavin Grimm. But DeVos seemed interested in moving more deliberately by seeking a public “notice and comment” period, one source said.

Another source close to the conversations said DeVos flatly opposed rescinding the directive, preferring to keep the protections in place. She and Sessions argued about it in the Oval Office earlier this week, the source said, but Trump sided with Sessions.

White House press secretary Sean Spicer disputed the suggestion of any internal friction during his press briefing Wednesday afternoon, saying DeVos was “100 percent” on board to rescind the policy. Spicer acknowledged there was debate within the Cabinet over timing and wording.

“There’s no daylight between anybody — between the president, between any of the secretaries," he said. "I think there’s been some discussion between the timing of the issuance and recommendations — or between the exact wording. But as far as the conclusions go, I’ve made this clear and the president’s made it clear throughout the campaign, that he is a firm believer of states’ rights and that certain issues like this are not best dealt with at the federal level.”

The decision to rescind the Obama directive could prompt the Supreme Court to punt on the Grimm case. On Wednesday night, DOJ advised SCOTUS justices about the federal government’s policy change, which could prompt the high court to refer the matter back to a lower court.

Trump's move was cheered by the defendant in the case: the Gloucester County School Board. Its chair, Charles Records, said in a statement that the board "is pleased that the federal government has withdrawn the opinion letter at issue" in the case. "We look forward to explaining to the Supreme Court why this development underscores that the board’s commonsense restroom and locker room policy is legal under federal law,” he added.

The high court was set to consider two questions in the Grimm case: whether the Obama administration’s interpretation of Title IX was correct and whether it was right for a lower court to defer to that interpretation.

The ACLU, representing Grimm, plans to file a brief arguing that it is still critical for the high court — even after the Trump administration’s action — to provide clarity on whether Title IX protects against gender-identity discrimination.

Josh Gerstein contributed to this report.

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