The U.S. Department of Education has confirmed to reporters that it won’t pursue any complaints filed by transgender students who are banned from restrooms that match their gender identity.
Under the leadership of anti-LGBTQ Education Secretary Betsy DeVos, the Trump administration has maintained a rather ambiguous policy regarding civil rights complaints from transgender students.
While the guidance called on the department’s Office of Civil Rights to look into situations where transgender students were discriminated against or harassed based on their gender nonconformity, the guidance also hinted — but never explicitly stated — that the office could choose not pursue claims where a student was banned from a public restroom that did not match their biological sex at birth.
On Thursday, the department cleared up that ambiguity once and for all, taking the position that transgender students are not protected by Title IX’s prohibitions on sex discrimination.
A spokeswoman for the Education Department clarified the department’s stance to BuzzFeed, stating: “Title IX prohibits discrimination on the basis of sex, not gender identity.”
The spokeswoman said that the Office of Civil Rights may choose to investigate other instances of harassment or discrimination that unfairly target transgender students, but that “long-standing regulations provide that separating facilities on the basis of sex is not a form of discrimination prohibited by Title IX.”
The Trump administration’s now-clarified position flies in the face of federal appeals court decisions out of the 6th and 7th Circuits, which suspended school restroom policies that barred transgender students from restrooms matching their gender identity. In both those cases, the courts found that transgender students in Ohio and Wisconsin who sued their respective school districts over being banned from certain restrooms were likely to prevail in proving they were discriminated against under Title IX.
That said, the Trump administration’s stance can hardly be thought of as surprising, given its history of opposing transgender rights.
Shortly after taking office, DeVos, working with Attorney General Jeff Sessions, approved a decision to rescind Obama-era guidance ensuring transgender students were treated according to their gender identity.
DeVos has previously opined that religiously-affiliated schools should be allowed to continue receiving taxpayer money, even if they have policies that actively discriminate against LGBTQ students.
DeVos has also been criticized by LGBTQ groups for rescinding Obama administration guidelines on sexual assault that some on the political Left feel are biased in favor of the accused over accusers. And last week, DeVos came under fire from more than 700 parents of transgender children, who signed onto a letter condemning her for failing to take appropriate action to ensure that transgender students are not discriminated against.
Despite the predictability of the Department’s latest action, LGBTQ advocates slammed its stance on Title IX as wrongheaded, maintaining that discrimination based on gender identity does constitute a form of sex discrimination.
“While civil rights advocates have suspected that the Department of Education was not acting on complaints brought forward by transgender students, reports that these violations are completely being ignored are reprehensible,” Sarah Warbelow, legal director for the Human Rights Campaign, said in a statement.
“The department’s failure to act conflicts with the law in multiple jurisdictions, including federal circuits, and further emboldens those who seek to discriminate against transgender students,” Warbelow continued. “Once again, Secretary DeVos proves she is not interested in protecting transgender students and instead is choosing to advance the dangerous Trump-Pence anti-LGBTQ agenda.”
Rebecca Isaacs, the executive director of Equality Federation, said the Trump administration’s attacks on LGBTQ people and families “just keep getting more cruel.”
“It is unconscionable to tell youth that their complaints of discrimination won’t even be heard,” Isaacs said in a statement. “Every student in America, including transgender students, should have a fair opportunity to fully participate and succeed in school! … We will continue working to make sure every school, town, and state is inclusive and provides a level playing field for everybody.”
Luis Acosta, the LGBTQ Media Director for the Democratic National Committee called the Education Department’s decision “no different” from other past anti-LGBTQ decisions and accused DeVos of “willingly undermining Title IX and turning her back on individuals facing institutional discrimination.”
“Despite the ouster of Virginia’s ‘chief homophobe’ by a transgender woman and losing the North Carolina governor’s mansion following backlash against the state’s ‘bathroom bill,’ Republicans haven’t learned that their far-right, anti-LGBTQ agenda is out of step with Americans across the country who will hold them accountable in November,” Acosta said.
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