After revoking Obama-era guidance assuring transgender kids in school have access to the restroom consistent with their gender identity, the Department of Education has issued new rules indicating the Trump administration may seek to adjudicate situations in which schools are allowing student harassment based on gender identity.
The three-page memo, signed by acting Assistant Secretary of Education for Civil Rights Candice Jackson, says despite the withdrawal of guidance determining Title IX of the Education Amendments of 1972 bars discrimination against transgender students, the administration will rely on Title IX in accordance with court decisions and regulations when “evaluating complaints of sex discrimination against individuals whether or not the individual is transgender.”
That would suggest the Department of Education is repositioning itself in the Trump administration against anti-trans discrimination in schools. A growing of numbers of federal courts are determining prohibitions on sex discrimination under federal law, including Title IX, bars discrimination against transgender people. For Title IX, a series of courts have determined the law assures transgender students have access to the school restrooms consistent with their gender identity.
The instructions, sent to Education Department employees, indicate the Office of Civil Rights “may assert subject matter jurisdiction” over a investigation if the administration deems a school isn’t handling allegations of anti-trans discrimination adequately. The new rules are dated June 6, but were first reported by the Huffington Post late Friday.
Identified as such allegations in the letter is “failure to promptly and equitably resolve a transgender student’s complaint of sex discrimination”; failure to assess whether harassment of transgender students, including the refusal to use their preferred gender pronouns, is motivated by animus; or retaliation against a transgender student for looking into potential sex discrimination claims.
The Department of Education under Education Secretary Betsy DeVos issues the new instructions after DeVos and U.S. Attorney General Jeff Sessions revoked the Obama-era guidance during the early months of the Trump administration. Media reports indicated DeVos privately resisted the move, but agreed go along with it on the insistence of President Trump.
The Trump administration guidance is considerably shorter than the more robust nine-page guidance the Obama administration issued more than a year ago. Moreover, the Trump administration makes no reference to restrooms and locker rooms — which was the most contentious point of the Obama-era rules — nor does the new guidance address allowing transgender kids to join athletic teams consistent with the gender identity as the Obama-era guidance did.
On the issue of bathrooms, the Trump memo says the administration may seek to resolve one portion of a transgender student’s complaint while the leaving the bathroom issue behind.
“It is permissible, for example, for one allegation in a complaint (such as harassment based on gender stereotypes) to go forward while another allegation (such as denial of access to restrooms based on gender identity) is dismissed,” the memo says.
James Esseks, director of the American Civil Liberties Union’s LGBT & HIV Project, said in a statement the new guidance under Trump is insufficient compared to the guidance issued during the Obama administration.
“The Trump administration’s decision to revoke the guidance on Title IX and transgender students was a shameful move,” Esseks said. “That guidance provided clarity to schools, as well as to transgender students and their families. These new instructions from the Department of Education are far from clear, and federal court rulings are increasingly on the side of transgender students.”
Condemning the instructions as “unclear” was Vanita Gupta, CEO of the Leadership Conference on Civil & Human Rights, who under the Obama administration was principal deputy assistant attorney general for the Justice Department’s Civil Rights Division.
“The unclear instructions issued by the Department of Education sow a new level of confusion and doubt for students, families and schools,” Gupta said. “Federal court rulings are increasingly on the side of transgender students, even if Secretary DeVos and Attorney General Sessions are not. The civil and human rights community continues to stand united, supporting the right of every student to be treated with dignity and respect, and to be protected by the law regardless of gender identity.”
Mara Keisling, executive director of the National Center for Transgender Equality, said her organization is still reviewing the new instructions, but said it’s “unclear and seems to be further rollback of federal civil rights enforcement.”
“It seems that what they are saying is that they will enforce the law for some students and not others,” Keisling said. “That is never acceptable. Using the bathroom is a significant and necessary part of being a student. If a student can’t use the right bathroom at school, they simply can’t go to school. So if a student is kept from using the right bathroom, it is illegal Title IX sex discrimination.”
A social conservative legal firm that has litigated against LGBT rights also expressed displeasure with the memo.
Mat Staver, chair of the Liberty Counsel, said the Title IX rules violate of freedom of speech and called on the Trump administration to reverse the policy.
“Title IX is silent regarding the use of pronouns, and it cannot be a violation to refer to students by pronouns consistent with their actual sex,” Staver said in a statement. “Requiring false pronoun usage by teachers is a compelled speech violation for teachers and compelling students to participate in a lie violates their right to free speech. I thought we had seen the last of this nonsense coming out of the Department of Education. I call upon Betsy DeVos to end this new policy.”
A White House spokesperson made a general assertion President Trump supports LGBT rights when asked if he supports the new Department of Education memo.
“President Trump is committed to protecting the rights of all Americans, including the LGBTQ community, and continues to be respectful and supportive of LGBTQ rights, just as he was throughout the election,” the spokesperson said.