Equity & Diversity

Ed. Dept. Won’t Investigate Transgender Students’ Complaints About School Restroom Access

By Evie Blad — February 12, 2018 3 min read
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The U.S. Department of Education won’t investigate or intervene if transgender students file civil rights complaints about access to school restrooms and locker rooms, a spokesperson told Buzzfeed News, confirming a position the agency has effectively held since it rescinded guidance on transgender student rights a year ago.

After Attorney General Jeff Sessions and Education Secretary Betsy DeVos rescinded that Obama-era guidance—which had asserted that transgender students are protected under the provisions of Title IX, the federal law that prohibits discrimination on the basis of sex—both officials said it would be up to schools and districts to interpret civil rights laws and set policies on transgender student access.

But the Education Department drew the line on some investigations in comments to Buzzfeed.

“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,” spokesperson Liz Hill told the news website. “In the case of bathrooms, however, long standing regulations provide that separating facilities on the basis of sex is not a form of discrimination prohibited by Title IX.”

That seems to echo the agency’s previous—albeit less public—positions on the issue. In a June directive to the Education Department’s civil rights investigators, the agency said it would be permissible to investigate transgender students’ claims of harassment while dismissing other complaints about issues, like facilities access.

That position is at odds with some preliminary federal court rulings, which have sided with transgender students who’ve said they have a right to access school restrooms that match their gender identity under Title IX’s regulations. Some national education groups have argued the issue will ultimately have to be settled by the U.S. Supreme Court to bring clarity for schools.

What this means practically for transgender students is that, if they believe their schools are violating their rights through restricting access to facilities like restrooms, they no longer have the option of complaining to the Education Department’s office for civil rights. Federal civil rights groups, like the ACLU, stress that students can still make their cases in court, but that can be more costly and time consuming than complaining to the federal agency.

The Buzzfeed report was met with criticism from civil rights groups and congressional Democrats Monday.

U.S. Sen. Patty Murray, D-Wash., the ranking member of the Senate education committee, said in a statement that she is “deeply disappointed and disgusted by this Administration’s callousness.”

“The Department of Education’s refusal to protect transgender students violates federal law and is another moral failure by this Administration,” Murray said. “Choosing to ignore the rights of transgender students and to not enforce Title IX when it comes to their protection is an unambiguous step backwards for civil rights in this country.”

Eliza Byard, executive director of the LGBT student advocacy group GLSEN, said the department’s state revealed “the full extent of its betrayal of transgender youth.”

“However much it may hurt Secretary DeVos’ feelings to hear it, her actions and those of her Department are hurting transgender students in concrete and far-reaching ways,” Byard said.

Image: Getty.

Further reading on transgender students:

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A version of this news article first appeared in the Rules for Engagement blog.