The Trump administration announced late Wednesday it has rescinded a key Obama directive granting transgender students federal protections in public schools, though the impact in Illinois may not be as pronounced as elsewhere and many local educators said they will not roll back existing policies.
The announcement by new Secretary of Education Betsy DeVos and Attorney General Jeff Sessions was condemned by those who saw the Obama-era guidance as a civil rights victory. But critics of that policy, which allowed transgender students to use the bathroom and locker rooms matching their gender identities, had called it federal overreach and lauded its reversal.
The development is the latest in a contentious national battle over privacy and equality, with a school district in suburban Chicago at the forefront of the clash after giving a transgender student access to the girls’ locker room and bathroom.
In a significant shift, Trump’s administration announced that it decided to “withdraw and rescind” the Obama administration’s guidance in order to “more completely consider the legal issues involved,” according to joint letter from the Education and Justice departments. The letter cited conflicting interpretations by federal courts of the Obama-era guidance.
That guidance was based on the premise that the protections of Title IX, the federal law that bans discrimination in schools on the basis of sex, extended to one’s gender identity.
The letter cited a rise in litigation and highlighted the role of states and local school districts in establishing educational policies. It also stated that safeguards against bullying, discrimination and harassment should remain in place.
DeVos said in a statement that her department’s Office for Civil Rights will continue to investigate claims of discrimination but that the issue of transgender student access is best left to states and communities.
“Schools, communities, and families can find — and in many cases have found — solutions that protect all students,” DeVos said in the statement.
The news of the reversal did not faze officials in Illinois’ largest and second-largest school districts, who said they plan to keep in place the guidelines they had previously adopted. Before the guidelines came down from the Obama administration, Chicago Public Schools last year announced its own policy allowing transgender students to use the restrooms and locker rooms of their gender identity.
“CPS led the way among school districts on bathroom policies for transgender students and staff, and we have no intention of backing down no matter what President Trump does to discriminate against the LGBTQ community,” spokeswoman Emily Bittner said.
After controversy erupted in September in Elgin-based School District U-46, the district issued guidelines granting students access to the restrooms and locker rooms that correspond with their gender identity. That has not changed, spokeswoman Mary Fergus said.
“We plan to uphold our guidelines as written,” she said on Wednesday.
Similarly, officials in Barrington Community Unit School District 220 and Arlington Heights-based Township High School District 214 said they don’t anticipate any changes to their current transgender student procedures and protocols.
“As educators, it’s always our responsibility to work with our students and families,” District 220 Superintendent Brian Harris said. “Our kids never come in a cookie-cutter format, and we work hard to meet the individual needs of our kids on a daily basis, and this falls under that.”
Still, some advocates worry the reversal could have a sweeping impact.
“Like other civil rights, transgender student access to education should not be left to the states,” said Owen Daniel-McCarter, executive director of the Illinois Safe Schools Alliance, a nonprofit that works with schools on LGBTQ issues. “Here in Illinois, we are fortunate to live in one of a minority of jurisdictions with comprehensive anti-discrimination laws that protect against discrimination on the basis of gender identity.”
In what has become one of the most high-profile cases on the issue, federal officials in an unprecedented 2015 decision found that northwest suburban Palatine-based Township High School District 211 violated Title IX when it denied a transgender student full access to the girls’ locker room.
Facing threats from the government of litigation and the loss of millions of dollars in federal aid, the district ultimately settled with the Department of Education’s Office for Civil Rights, allowing the transgender student access to the girls’ locker room last year and adding privacy stalls. But a lawsuit from a local group opposing the locker room access quickly followed. Transgender students in the district had already been granted access to the bathrooms of their choice.
Citing the pending litigation, a District 211 spokesman declined comment.
The group of parents and students who sued the district and the federal government last May argued that allowing the locker room access trampled on the privacy rights of the other students, created a hostile environment and prevented students from practicing the modesty that their faith requires. The plaintiffs in the ongoing suit also said federal officials illegally changed the definition of Title IX and are overreaching in a local matters.
In a call with reporters on Wednesday before the reversal was announced, lawyers representing the group in the lawsuit urged the Trump administration to repeal the guidance.
“Set free America’s local school officials to protect student privacy,” said Gary McCaleb, an attorney with Alliance Defending Freedom. “Let them ensure that America’s boys and girls have the privacy they need in locker rooms, showers, restrooms and on overnight school trips.”
Vicki Wilson, a District 211 parent who co-founded Students and Parents for Privacy, the lead plaintiff in the case, also spoke to reporters.
“Our daughters should never be forced to undress in the presence of young men because it violates their right to privacy and harms their dignity,” she said.
Illinois legal experts maintain that the state’s Human Rights Act, which added gender identity as a protected class in 2006, will provide further protection for transgender students.
The federal guidelines faced legal challenges even before Trump’s election. In Texas, a federal judge last year issued an injunction temporarily blocking transgender students from using the school bathrooms and locker rooms of their choice.
Earlier this month, the Department of Justice withdrew its opposition to the injunction. That decision prompted nearly 800 parents from across the country, including Naperville and Oak Park, to send a letter to Trump. They wrote in part that they were “heartbroken and scared” and that “No young person should wake up in the morning fearful of the school day ahead.”
The U.S. Supreme Court is soon expected to hear the case of Gavin Grimm, a Virginia transgender student who sued over access to the boys’ bathroom.
School districts around the state are increasingly adopting open and inclusive gender policies, said Ed Yohnka, spokesman for the American Civil Liberties Union of Illinois, which represents the transgender student in the District 211 case. Undoing Obama’s guidelines may slow down that momentum, but it won’t stop it, he said.
“I don’t think it changes the progress of history,” Yohnka said. “This is about treating people with dignity and respect and fairness, and that progress is always going to move forward, even if it’s slow.”
deldeib@chicagotribune.com
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