Justice Department Won’t Defend Obama-Era Bathroom Guidance

by Alexandra DeSanctis

Under the leadership of attorney general Jeff Sessions, the Department of Justice has announced that it will no longer defend guidance issued under President Barack Obama regarding transgender students’ access to bathrooms and other single-sex areas in public schools.

Last May, the Justice and Education departments released what has been termed a “dear colleague” letter, providing “significant guidance” to school districts across the country about the best policies for respecting the rights of transgender individuals in schools. Under the auspices of Title IX, the letter advised that schools ought to permit students to use the bathrooms, locker rooms, and other facilities that align with their gender identity rather than their biological sex.

Then, in August, a judge placed a temporary hold on this guidance letter, leaving school bathroom policies in limbo. In a new one-page filing, the Justice Department has advised that it will not continue to push its appeal against the judge’s decision, meaning, in part, that the oral arguments scheduled to take place this week will be put off for the foreseeable future. In addition, 13 states sued the Obama administration over the “dear colleague” letter; the Justice Department’s latest move leaves uncertain the future of that lawsuit.

This decision will leave schools across the country free to craft their own bathroom, shower, dorm-room, and locker-room policies in the absence of federal guidance. In practice, this means that every locality will control its own policies, allowing parents, teachers, and local school boards to determine the best path forward.

According to Ryan T. Anderson, a senior research fellow at the Heritage Foundation, the Trump administration ought to take another step and acknowledge that the Obama letter from May was unlawful, because it misinterpreted Title IX’s prohibition of discrimination on the basis of sex. As Anderson put it, “sex” in the context of Title IX refers to “a biological, anatomical reality, not gender identity.”

With its letter last May, the Obama administration effectively attempted to unilaterally redefine the Title IX statute by claiming that “sex” in this context somehow actually means “gender identity.” But the executive branch doesn’t have the authority to impose a particular understanding of biological sex and gender identity on the entire country, and especially not to force schools in all 50 states to change their bathroom policies to comply with a progressive understanding of “sex.”

Furthermore, Anderson said in an interview with EWTN that the Obama policy was flawed because it focused solely on protecting the rights of transgender students without acknowledging the competing privacy concerns of other students. Going forward, the best approach would seek to balance the concerns of those on both sides of this complex issue.

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