The Department of Education and the Department of Justice released a "Dear Colleague" letter late Wednesday that reversed protections for transgender students put in place by the Obama administration.
The Obama-era guidelines stated that Title IX protections extend to discrimination based on gender identity, not just gender.
However, the latest letter argues that those guidelines did not "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 also states there "must be due regard for the primary role of states and local school districts in establishing educational policy."
Education Secretary Betsy DeVos and transgender student advocates note that the Obama-era guidelines had already been blocked by a federal judge, so the new letter may have little immediate impact on students. However, some college students have used the guidelines to advocate for access to bathrooms and residence halls that correspond to their gender identities.
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DeVos was initially resistant to the letter, the New York Times reports. She expressed concerns that rescinding the protections could open transgender students to bullying. According to the Times, DeVos relented after strong pressure from Attorney General Jeff Sessions and President Donald Trump. However, she released a statement Wednesday night arguing that every school has a "moral obligation" to protect all students from harassment.
A legal dispute over transgender students' use of bathrooms caught the University of North Carolina between state and federal governments last year. Legal and political experts told the Charlotte Observer that the new letter could make it harder to settle the ongoing battle in North Carolina.
Shane Windmeyer, executive director of Campus Pride, points out that the letter doesn't forbid colleges from permitting students to use facilities that correspond with their gender identity.
"If the Trump administration rescinds [the Obama administration's guidelines] or changes that guidance in any way, it doesn't mean that campuses shouldn't or can't protect students who are transgender or any other students for that matter," Windmeyer said Wednesday before the new letter was released.
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Genny Beemyn, director of the Stonewall Center at the University of Massachusetts at Amherst and coordinator of the Trans Policy Clearinghouse at Campus Pride, told the Chronicle of Higher Education that the new letter creates a "much more ambiguous situation going forward."
By Friday morning, several colleges and universities announced they would preserve inclusive restroom policies or plans already in place, including Portland State University, Bloomsburg University, the University of California, Syracuse University, and more (Mytelka, Chronicle of Higher Education, 2/22; Peters et al., New York Times, 2/22; Hersher, NPR, 2/22; Kreighbaum, Inside Higher Ed, 2/23; June, Willamette Week, 2/22; Gordon/Morrill, Charlotte Observer, 2/22; Krize, ABC/WNEP, 2/23; Hendricks, Daily Californian, 2/23; McMahon, Syracuse.com, 2/23).
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