WASHINGTON — In what appears to some as being a signal that the Trump administration is not going to defend the Obama administration’s directives requiring public schools to allow male students who identify as female—and vice versa—to use the restroom that correlates with their “internal sense of gender,” the U.S. Department of Justice has withdrawn the previous administration’s request for a stay of an injunction against the Obama-era restroom policy.
The filing, submitted on Friday, notifies the 5th Circuit Court of Appeals that it desires to withdraw the motion, as well as the oral argument scheduled over the matter, which was to be held on Tuesday.
“Defendants-appellants hereby withdraw their pending November 23, 2016 motion for partial stay pending appeal. The parties jointly move to remove from the court’s calendar the February 14, 2017 oral argument currently scheduled for that motion,” it reads. “The parties are currently considering how best to proceed in this appeal.”
As previously reported, after 13 states sued the Obama administration last year over its directives, which warned that “[a]s a condition of receiving federal funds, a school agrees that it will not exclude, separate, deny benefits to, or otherwise treat differently on the basis of sex any person in its educational programs or activities unless expressly authorized to do so under Title IX or its implementing regulations.”
But in August, U.S. District Judge Reed O’Connor determined that the U.S. Department of Education and the U.S. Department of Justice had not followed the proper channels in issuing the nationwide guidance, and suggested that the departments’ interpretation of federal law was incorrect.
“It cannot be disputed that the plain meaning of the term sex … following passage of Title IX meant the biological and anatomical differences between male and female students as determined at their birth,” he wrote.
“Without question, permitting educational institutions to provide separate housing to male and female students, and separate educational instruction concerning human sexuality, was to protect students’ personal privacy, or discussion of their personal privacy, while in the presence of members of the opposite biological sex.”
The Obama administration filed a motion for a partial stay—only applying to the suing states, as it intended to defend its restroom directives. But on Friday, the Department of Justice, under the leadership of new attorney general Jeff Sessions, withdrew the motion.
Department spokesman Peter Carr declined to comment to reporters on the matter.
Transgender advocacy groups decried the move.
“It is sending a signal they don’t intend to enforce the guidance in any state. They are fine with their hands being tied,” Sarah Warbelow, legal director for the Human Rights Campaign, told CNN. “The DOJ should be a champion for all students’ civil rights and by signaling a willingness to be bound by the injunction nationwide they are certainly signaling they aren’t intending to pursue civil rights for transgender people.”
Last May, then-candidate Donald Trump said that he believed transgender restroom use would be best left to the states.
“I think this should be a states’ issue. It’s become a huge story and yet it affects—and everybody has to be protected, if it’s one person—but it’s a tiny, tiny portion of the population, and it’s become a massive story,” he stated. “I think there should be a states’ issue.”
However, when asked during NBC’s “Today” show in April if he personally would be fine with Bruce “Caitlyn” Jenner using the restroom of his choice at Trump Tower, he replied in the affirmative.
“That is correct,” Trump said.
Jenner later recorded himself taking a bathroom break at the facility, adding, “Thank you, Donald. I really appreciate it.”
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