Trump flushes Obama's school-bathroom mandate

Children standing in line washing their hands in a primary school bathroom

Children in a primary school bathroom

The Trump administration has sent a letter to schools across the nation withdrawing President Barack Obama's requirement that boys who identify as girls be allowed to use girls' showers, restrooms and other sex-specific facilities.

In a "Dear Colleague" letter Wednesday, the Trump administration abandoned the overreach from the Obama administration that claimed that back in the 1970s, when Title IX was being adopted, Congress had in mind that girls' facilities should be open to boys who say they are girls and vice versa.

"These [Obama] guidance documents take the position that the prohibitions on discrimination 'on the basis of sex' in Title IX … require access to sex-segregated facilities based on gender identity. These guidance documents do not, however, contain extensive legal analysis or explain how the position is consistent with the express language of Title IX, nor did they undergo any formal public process," the letter said.

So "the Department of Justice and the Department of Education are withdrawing" the Obama mandates.

See what American education has become, in “Crimes of the Educators: How Utopians Are Using Government Schools to Destroy America’s Children.”

The letter noted that "significant litigation" had arisen over the move and that "the U.S. Court of Appeals for the Fourth Circuit concluded that the term 'sex 'in the regulations is ambiguous and deferred to what the court characterized as the 'novel' interpretation advanced in the guidance."

But, it said, "by contrast, a federal district court in Texas held that the term 'sex' unambiguously refers to biological sex and that, in any event, the guidance was 'legislative and substantive' and thus formal rulemaking should have occurred prior to the adoption."

Further, the federal departments believe "there must be due regard for the primary role of the states and local school districts in establishing educational policy."

It said schools themselves must now ensure that "all students … are able to learn and thrive in a safe environment."

The letter was signed by Sandra Battle, acting assistant secretary for civil rights in the Education Department, and T.E. Wheeler II of the Justice Department.

"The Trump administration's reversal of this mandate on schools is a victory for parents, children and privacy," said Tony Perkins, president of the Family Research Council.

"The Obama administration resorted to this coercive policy because they knew parents and schools could never be persuaded to force boys and girls to shower together, stay together on school trips and use the same locker rooms and bathrooms," he said. "As it turned out, the persistence of parents was far stronger than the government's power of coercion. Parents refused to allow their child's innocence to be sacrificed on the altar of government imposed political correctness."

Perkins said the announcement "fulfills President Trump's campaign promise to get the federal government out of the business of dictating school shower and bathroom policies."

"The federal government has absolutely no right to strip parents and local schools of their rights to provide a safe learning environment for children," he said.

"What we were taught in kindergarten, boys use the boys room and girls use the girls room, was made old fashioned by liberal bureaucrats. Thanks to the Trump administration, parents and schools will remain free to protect the privacy and well-being of every student," concluded Perkins.

Gary McCaleb of the Alliance Defending Freedom, which had fought Obama's mandate, said President Trump, Education Secretary Betsy DeVos and Attorney General Jeff Sessions "have done the right thing for the privacy, safety and dignity of young students across America."

"No longer will federal officials distort federal law that is meant to equalize educational opportunities for women, and no longer will they force local officials to intermingle boys and girls within private areas like locker rooms, showers, hotel rooms on school trips, and restrooms. Student privacy in those facilities must be protected, and by restoring the right understanding of Title IX, our nation also restores common sense: School officials should be free to protect their student’s privacy, safety, and dignity."

Sarah Harrington, a student from Palatine, Illinois, and a member of Students and Parents for Privacy, told ADF: "When my school district made the decision to allow boys in the girls' locker room and shower area, it made me feel that my rights didn't matter. I should have a choice when a boy is in the room when I undress. There are sensitive accommodations for those who are struggling with these issues that respect the privacy, dignity, and well-being of all students, because every student matters. It is common sense: Boys don't belong in locker rooms or shower areas with girls."

Dan Harrington added: "As a parent, I expect the school my daughter attends to protect her privacy, dignity, and well-being. When our school district, at the urging of the Obama administration, allowed boys into the girls’ locker room, it abandoned its duty. That is why a group of parents felt the need to stand up for our children and every child in the school. We are grateful that the president has taken first step in restoring sanity to our schools. There are common-sense solutions that would protect the rights and dignity of all students. Allowing young men into the restrooms and locker rooms of our daughters is not one of them."

White House spokesman Sean Spicer earlier Wednesday said the Trump administration believed it is obligated to follow U.S. law on the issue, rejecting Obama's interpretation of "sex" in the 1972 Title IX law as whatever gender a person chooses.

"There are problems in both the legal and process way in which (Obama's) guidance was issued," Spicer explained in response to a question about the issue. "And so it is incumbent on us to actually follow the law and to recognize that Title IX … was [enacted] in 1972.

Spicer said there was "no discussion about this back then, and to assume certain elements of the law were thought about back then with respect to this are completely preposterous."

Asked by a reporter why the Trump administration was making the bathroom issue a priority even though it was hardly discussed in the campaign, Spicer explained the directive is a response to a lawsuit that began during the Obama administration.

See what American education has become, in “Crimes of the Educators: How Utopians Are Using Government Schools to Destroy America’s Children.”

The U.S. Supreme Court already had agreed to hear one case in the fight. A second case was at the appellate level in the court system. Obama, before the end of his term, had been fighting to have the judge's order limited or overturned, but the Trump administration said it wouldn't continue that war.

Liberty Counsel, which fought Obama's order, said the Obama directive "would have forced schools to allow boys to use the bathrooms and locker rooms with which they subjectively self-identify rather than their biological sex."

It was U.S. District Judge Reed O'Connor in Texas who blocked the Obama directive nationwide and denied requests from two federal executive branch departments to lift the ban.

He also noted that "sex" as used in 1972 referred to the physical gender with which people are born.

"We applaud the Trump administration for taking a stand against the Obama administration attempts to impose its unlawful and harmful LGBT agenda on public schools," said Mat Staver, Liberty Counsel's founder. "The Obama directive is a lawless act and defies common sense. Allowing boys to use private facilities for girls violates the right to privacy and places girls at risk of sexual abuse."

Spicer continued: "The president has maintained for a long time that this is a states' rights issue and not one for the federal government. So while there will be further guidance coming out on this, I think that all you have to do is look at what the president’s view has been for a long time – that this is not something that the federal government should be involved in; this is a states' rights issue."

The pro-transgender Human Rights Campaign was outraged.

Chad Griffin, the president, said, "Transgender students are entitled to the full protection of the United States Constitution and our federal nondiscrimination laws."

WND reported days ago that a court filing from Sessions suggested the new direction.

"If you thought President Trump hit the ground running, you should see Jeff Sessions. The new attorney general was probably still unpacking his office when he got to work turning the page at the Justice Department after eight years of scandal. First up? The Obama bathroom mandate for public schools," said the Washington Update by the Family Research Council.

"Less than 48 hours after his confirmation, Sessions's DOJ made it clear the agency was under new management by refusing to defend the controversial order to let students of both sexes use any locker room, shower, or restroom they want."

WND reported late in 2016 that the federal judge who originally halted Obama's order, O'Connor, doubled down on it, contending both Title IX and Title VII, which prohibit discrimination on the basis of "sex," rely on "the consistent, uniform application of national standards in education and workplace policy."

See what American education has become, in “Crimes of the Educators: How Utopians Are Using Government Schools to Destroy America’s Children.”

Brad Dacus, president and founder of Pacific Justice Institute, said he and his colleagues "salute President Trump’s actions to restore the privacy and dignity of those in public schools."

"While communities should work to accommodate the needs of all students, including those with Gender Identity Dysphoria, Obama’s extreme mandate jeopardized the privacy rights of virtually every student in public schools," he said. "No teenager in a locker room should ever have to worry about suddenly being visually violated by someone of the opposite biological sex while changing their clothes or showering."

The Obama administration contended that when Congress adopted the nondiscrimination law in 1972, it had open restrooms and showers in mind.

But the judge said, "It cannot be disputed that the plain meaning of the term sex as used in [existing law] when it was enacted by DOE following passage of Title IX meant the biological and anatomical differences between male and female students as determined at their birth."