Trump administration working on new transgender bathroom directive

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White House could drop transgender bathroom policy

Trump administration believes states should decide on issue

The Trump administration is working to undo an Obama-era directive that allows students to use school restrooms that correspond with their gender identity, the White House said Tuesday.

White House spokesman Sean Spicer did not go into specifics on the new set of guidelines being prepared by the Justice Department, but said Trump has long held that such matters should be left to the states -- not the federal government -- to decide.

“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 the federal government should be involved in, this is a states' rights issue," Spicer said.

The Washington Post obtained a draft of the letter to the nation’s schools, which is planned to be released Wednesday.

The White House plans to say that they are rolling back the directive allowing transgender students access to restrooms and allowing them to participate in school athletics according to their gender identity and not their gender at birth.

The letter also states that the directive “has given rise to significant litigation” and administrators, parents and students “struggled” to understand and implement the Obama administration’s guidance.

The White House will insist that schools must protect all students and the undoing of the directive “does not diminish the protections" available to all students.

Trump was a vocal critic about the Obama administration’s guidance during the 2016 campaign.

Trump said in a phone interview on “Fox & Friends” in May 2016 that the directive was becoming a “massive story” despite it only affecting a “tiny, tiny” percentage of the population.

"It's a new issue and right now, I just don't have an opinion. I’d like to see the states make that decision," Trump said at the time.

Trump was also outspoken about North Carolina passing a law on bathroom use by transgender people.

"I love North Carolina, and they have a law, and it's a law that, you know, unfortunately is causing them some problems," Trump told Fox News’ Sean Hannity in an April 2016 interview. "And I fully understand that they want to go through, but they are losing business, and they are having people come out against."

"I think that local communities and states should make the decision," he went on to say. "And I feel very strongly about that. The federal government should not be involved."

Fifteen states have explicit protections for transgender students, and many individual school districts have adopted policies that recognize students on the basis of their gender identity, said Sarah Warbelow, legal director of the Human Rights Campaign.

Only one state-- North Carolina-- has enacted a law restricting students' bathroom access to their sex at birth. Other states are considering following suit.

Vanita Gupta, who was head of the Justice Department's Civil Rights Division under Obama, blasted the Trump administration's attempt to alter the guidelines.

"To cloak this in federalism ignores the vital and historic role that federal law plays in ensuring that all children, (including LGBT students) are able to attend school free from discrimination," Gupta said in a statement.

Even without Obama's guidelines, federal law — called Title IX — would still prohibit discrimination against students based on their gender or sexual orientation, the National Center for Transgender Equality said. Rescinding those directives would put children in harm's way, the group said.

"Such clear action directed at children would be a brazen and shameless attack on hundreds of thousands of young Americans who must already defend themselves against schoolyard bullies, but are ill-equipped to fight bullies on the floors of their state legislatures and in the White House," NCTE said in a statement.

But Ryan Anderson, a senior research fellow with the conservative Heritage Foundation, said students, parents and teachers should work out "win-win" solutions at the local level, such as equipping schools with single-occupancy restrooms or locker rooms or allowing students to access the faculty lounge.

"We can find a way in which the privacy and safety of transgender students is respected while also respecting the privacy and safety of all other students," Anderson said.

The Associated Press contributed to this report.

Ryan Gaydos is a news editor for Fox News. Follow him on Twitter @Gaydosland.