Education Dept. Stops Investigating Complaints By Transgender Students About Bathroom Access.
Reversing an Obama Administration policy, the Department of Education announced yesterday that the Trump Administration would no longer consider or investigate complaints by transgender students about lack of access to bathrooms appropriate to their gender identity:
The Education Department confirmed Monday it is no longer investigating civil rights complaints from transgender students who have been barred from school bathrooms matching their gender identity, a development that those students say leaves them vulnerable to bullying and violence.
The Obama administration in 2016 directed public schools to allow students to use bathrooms that align with their gender identity, even if that conflicted with the gender on their birth certificates. The administration concluded that barring transgender students from public school bathrooms was a form of sex discrimination prohibited under Title IX.
But shortly after Trump took office last year, Education Secretary Betsy DeVos and Attorney General Jeff Sessions rescinded the guidance, a move that was widely decried by civil rights groups who said it could endanger the welfare of transgender students. DeVos said states and individual school districts should be able to determine how to accommodate transgender students. They argued that Title IX did not obligate schools to allow transgender students to use the bathroom of their choice.
Transgender students say using the bathroom that feels right for them is essential for their safety and well-being and poses no threat to others. Some other students and their families see it as an affront to privacy and traditional values. It is a battle that has been waged at school board meetings, in state legislatures and in the courts. A transgender student from Virginia, Gavin Grimm, took his fight to use the boys’ bathroom to the U.S. Supreme Court in 2016. The high court declined to hear the case after DeVos reversed course on transgender students rights.
In the aftermath of the move, it remained unclear how the department would handle civil rights complaints from transgender students who were barred access to public school bathrooms. In June, Candice Jackson, the acting head of the Office for Civil Rights, told staff that it should evaluate civil rights complaints from transgender students on a case-by-case basis but did not say outright that bathroom complaints should be dismissed. That same month, the department dismissed a long-running civil rights complaint from a transgender girl in Ohio who had been barred from the girls’ bathroom at school.
Transgender students held out hope that the department would continue to back them when they raised issues about bathroom access, even though the guidance was no longer in place. Advocates maintain that Title IX, which bars sex discrimination in schools that receive federal funds, requires schools to allow transgender students to use bathrooms that match their gender identity. Some federal appeals courts have backed this view.
But the department interprets the law differently. It confirmed Monday that it will not investigate civil rights complaints from transgender students regarding bathroom access, though it will continue to scrutinize other forms of discrimination. The development was first reported by BuzzFeed.
“Title IX prohibits discrimination on the basis of sex, not gender identity,” Education Department spokeswoman Elizabeth Hill said in response to questions from The Washington Post. “Where students, including transgender students, are penalized or harassed for failing to conform to sex-based stereotypes, that is sex discrimination prohibited by Title IX. In the case of bathrooms, however, longstanding regulations provide that separating facilities on the basis of sex is not a form of discrimination prohibited by Title IX.”
Pressed on whether the department would investigate such complaints, Hill said: “Where [the Office for Civil Rights] does not have jurisdiction based on current law [the Office for Civil Rights] does not investigate.”
As noted, this decision comes roughly a year after the Department of Education and Justice Department announced that they were rescinding legal guidance provided to America’s public schools regarding the application of Federal civil rights laws to transgender students and the issue of bathroom and locker room access. That guidance, which was issued in May of 2016 took the position that anti-discrimination laws based on gender as set forth in the Civil Rights Act of 1964, which were extended to education in 1972, covered transgender Americans and should be interpreted as saying that these individuals had the right to be treated in accordance with the gender they identify with even when it conflicts with the gender they were given at birth. Based on this argument, the Obama Administration intervened in a lawsuit involving a Chicago area school district. In that case, the Administration had argued that the school district had violated Federal laws when it denied a transgender student access to the girls’ bathroom and showers on the ground that they were still biologically and physically male. In the wake of the guidance issued by the Obama Education Department, other lawsuits sprung up around the country.including one filed by a student in a school district in the suburban Richmond, Virginia area making essentially the same claims as the Chicago case. In that case, the Fourth Circuit Court of Appeals ruled that a transgender teen who was born female could proceed with a lawsuit against their local school board over the issue of bathroom access in a ruling that largely accepted the legal arguments that the Department of Education made in the Chicago case. That case was appealed to the Supreme Court and the Justices accepted the case for review but ultimately dismissed as moot by the Court after the Federal Government changed Education Department policy as well as due to the fact that the student in question had graduated the previous June.
Of course, it was inevitable that the guidelines would be rescinded under a Republican Administration While Trump himself only rarely speaks about social issues and barely talked about issues such as LGBT rights or abortion during the campaign, it’s been clear from the start that social conservatives would move to roll back a provision such as this which has proven to be hugely opposed by people on the right. For the most part, this opposition is based in large part on some rather ill-defined fears about transgender adults and children using bathrooms of the gender they identify with as well as what, in many cases, either a clear misunderstanding about what being transgendered is really all about. I will admit that this remains an issue that I don’t fully understand myself, but what I do understand is that no good can come from vindicative policy moves such as this that are aimed more at undoing yet another Obama Era policy as it is anything based in science, reason or simple human decency. In other words, this decision and last year’s decision to rescind the DoE/DoJ guidelines seems more like an effort to pander to social conservatives than it does to implement good policy. What’s unfortunate is that it is transgender students who will end up paying the price for the Trump Administration’s pandering.
Things are a bit more complicated from a legal point of view, though. As I noted at the time the guidelines were issued, the legal basis for the orders issued by the Obama Administration is tenuous at best. Several Courts have ruled in the past that current Federal laws such as Title IX may not apply to transgender students at all, which means that those laws would need to be changed by Congress. Others have argued that, at least as far as schools are concerned, this is an issue that, for now at least, should be left to the states until there is more of a national consensus, as happened with the issue of same-sex marriage. As I’ve said before, I am somewhat ambivalent on the legal arguments. While I recognize the policy arguments in favor of the Obama Administration policy, the simple fact is that it is hard to accept the argument that laws passed in 1964 and 1972 respectively could reasonably be interpreted as applying to a class of citizens that were clearly not within the contemplation of Congress at the time those laws were drafted. Instead, this is a matter that ought to be addressed by Congress or, alternatively, by individual states who remain free to amend their own laws to cover situations like this should they choose to do so. Whatever the legal merits of the Obama Era policy may be, though, it seems clear now that this issue is basically dead as a legal issue as long as the Trump Administration is in power, at least on the national level. Individual Plaintiffs can and no doubt will continue to pursue the legal theories that were contained in the original guidelines, but without the backing of the Federal Government, they are going to be in a far weaker position in Court than they would have been otherwise.