Just days after Jeff Sessions was confirmed as Attorney General, the Department of Justice is already showing signs of walking back its guidance for trans students using bathrooms consistent with their gender identity in public schools.
Under the Obama administration, the Departments of Justice and Education issued a joint guidance in May last year to school districts nationwide, strongly encouraging them to respect transgender students' rights to use the bathroom consistent with their gender identity. The guidance, while not legally binding, came with the underlying threat that federal funds could be withheld if school districts were found to be discriminating against students based on their gender identity.
Soon after, 12 states (including Texas, Alabama, Wisconsin, West Virginia, Tennessee, Oklahoma, Louisiana, Oklahoma, Utah, Georgia, and Arizona) sued the federal government over the guidance. The lawsuit alleged that the DOJ and Department of Education guidance "conspired to turn workplaces and educational settings across the country into laboratories for a massive social experiment, flouting the democratic process, and running roughshod over commonsense policies protecting children and basic privacy rights."
In August last year, a Texas judge granted an injunction in that case, blocking the guidance from being implemented across the country. The Department of Justice challenged that nationwide halt in November, requesting for it to only apply to the dozen states involved in the lawsuit. But on Friday, under the new administration, the department withdrew that request. The department also requested the court to cancel a hearing scheduled for this Tuesday, where DOJ lawyers would have argued to limit the injunction to those 12 states.
Under Obama, the DOJ held the position that gender identity is included in Title IX protections against sex-based discrimination. It's unclear if that definition will be upheld by a Sessions DOJ—but based on these preliminary moves, it appears unlikely. Transgender rights groups are concerned that Friday's request is an indication of more anti-trans stances to come from the agency under Sessions and Trump.
“By refusing to fulfill their responsibilities to protect all the nation's students and defend this life-saving guidance, U.S. Attorney General Jeff Sessions and the Trump administration have attacked the dignity and safety of transgender students," said Mara Kiesling, Executive Director of the National Center for Transgender Equality, in a statement responding to the DOJ move.