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DeVos: Education Department will not change transgender policy until Congress or SCOTUS “clarifies” Title IX

Secretary stands by decision to not pursue complaints from transgender students who are barred from restrooms and public facilities

Betsy DeVos — Photo: Gage Skidmore / Flickr

Education Secretary Betsy DeVos confirmed that the Department of Education will continue to ignore complaints filed by transgender students who are barred from restrooms and locker rooms matching their gender identity.

Appearing before a congressional committee on Tuesday, DeVos was asked by Congressman Mark Pocan (D-Wis.) about a decision last month by the Education Department to interpret Title IX’s protections against “sex discrimination” as referring to instances where someone is denied access to facilities or resources, or discriminated against in some other way, due to their biological sex at birth.

In issuing that decision, the Office for Civil Rights indicated that it would continue to investigate other complaints of discrimination or harassment lodged by transgender students, so long as it did not involve access to restrooms, locker rooms, or other intimate spaces.

Pocan noted that a growing number of federal courts have ruled that transgender students are protected by Title IX. When asked how she would deal with complaints from students who live in areas where courts have ruled that discrimination based on gender identity is a form of sex discrimination, DeVos dodged the question.

“We have continued to protect the rights of students as defined under Title IX, and have continued to do so, and to consider all of those matters brought to the Office for Civil Rights,” DeVos said. “We will continue to do so until either 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. This department is not going to make law, we are going to continue to enforce laws that we are given to do.”

DeVos has long been criticized by the LGBTQ community for her past activism prior to being confirmed as Secretary of Education, particularly her opposition to marriage equality and her ties to anti-LGBTQ boards or organizations.

In February 2017, DeVos, working along with Attorney General Jeff Sessions, rescinded Obama-era guidance recommending that school districts treat transgender children according to their gender identity, including with respect to which restrooms and locker rooms they are able to access.

DeVos was also criticized last year for suggesting that states should have the freedom to craft their own policies on whether schools that may choose to actively discriminate against LGBTQ students, such as religiously-affiliated institutions or public charter schools, can continue to receive federal taxpayer dollars through vouchers or other scholarship programs aimed at providing greater school choice to low-income students.

“When pressed, Secretary DeVos shows that she knows federal laws must apply when schools receive federal funds. For the sake of our transgender students, I hope she puts action behind her words,” Nathan Smith, the director of public policy at the LGBTQ student advocacy organization GLSEN, said in a statement. “Courts are ruling time and time again in favor of trans student protections under the law, and Sec. DeVos can’t pretend they aren’t.”

GLAAD, the world’s largest LGBTQ media advocacy organization, also criticized DeVos for her willingness to stand by the Education Department’s interpretation of Title IX and its refusal to actively pursue complaints involving bathroom or locker room bans.

“As Secretary DeVos fumbles through another congressional hearing, her record of walking-back LGBTQ protections and actively refusing to aid transgender students facing discrimination speaks for itself,” Sarah Kate Ellis, the president and CEO of GLAAD, said in a statement. “It is long past time for Secretary DeVos to reverse course and clearly denounce policies that target LGBTQ students. Our Secretary of Education should be fighting for all students, not actively making life more difficult for transgender students.”

See video of DeVos’ exchange with Pocan below:

Editor’s Note: This story was update to include reaction from GLSEN.

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John Riley is the local news reporter for Metro Weekly. He can be reached at jriley@metroweekly.com

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