Under questioning Tuesday from Rep. Mark Pocan (D-Wis.), who’s gay and a co-chair of the LGBT Equality Caucus, DeVos said the department continues to enforce Title IX of the Education Amendments of 1972, which bars sex discrimination in schools, but not as it pertains to transgender kids denied access to restrooms in schools.
“Until the Supreme Court or Congress clarifies the law with regard to transgender access to bathrooms, athletic locker rooms and athletic teams, that is not an area where law has been clarified,” DeVos said. “This department is not going to make law. We are going to continue to enforce laws that we are given to do.”
Recognizing DeVos’ position is contrary to the views of numerous judicial rulings, Pocan responded as his time for questioning concluded, “So you won’t back the courts.”
DeVos indicates the Education Department won’t take up transgender bathroom complaint even though a growing number of courts are interpreting laws against sex discrimination to apply to transgender people, including in cases where schools are denying them access to restrooms consistent with their gender identity. Just last week, a federal judge in Baltimore ruled St. Michaels Middle High School in Talbot County must allow transgender teen Max Brennan to use the boys’ locker room.
It might be a while before the U.S. Supreme Court rules on transgender bathroom use as DeVos has envisioned. Courts keeps ruling in favor of transgender protections under existing civil rights law, which makes it difficult for LGBT advocates to find a vehicle to appeal to the high court.
It’s not the first time DeVos has indicated her department won’t help transgender kids in schools with bathroom access. The Trump administration under her direction rescinded Obama-era guidance interpreting Title IX to bar schools from denying transgender kids access to restrooms and locker rooms consistent with their gender identity. A Education Department spokesperson confirmed to Buzzfeed last month it won’t take up complaints of transgender students with bathroom access issues.
Mara Keisling, executive director of the National Center for Transgender Equality, said in a statement DeVos’ remarks were “disappointing, though unsurprising.”
“Since last year, the Department of Education has repeatedly and willfully turned a blind eye to federal court decisions, to the needs of school administrators, and to the needs of all students — including transgender students,” Keisling said.