Equity & Diversity

Feds on Transgender Student Rights: Put Focus on Bullying, Not Bathrooms

By Evie Blad — June 16, 2017 5 min read
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The U.S. Department of Education seems to be trying to split the baby on transgender student rights by directing civil rights investigators to find ways to address transgender students’ concerns of harassment and bullying, while giving them freedom to bypass complaints about access to facilities like bathrooms and locker rooms that match their gender identity.

The Trump administration rescinded Obama-era civil rights guidance on transgender students in February. That guidance asserted that transgender students are included under the federal sex-discrimination protections in Title IX. As it withdrew that guidance, the Trump administration did not assert its own interpretation of the law, creating concerns about a lack of clarity and consistency in schools’ obligations to transgender students in areas like facilities access, pronoun usage, confidentiality, and school climate.

In a document first obtained by the Los Angeles Times Friday, an official from the Education Department’s office for civil rights told regional directors not to rely on the rescinded guidance and to refer instead to “Title IX and its implementing regulations, as interpreted in decisions of federal courts and OCR guidance documents that remain in effect, in evaluating complaints of sex discrimination against individuals whether or not the individual is transgender.”

Schools can still be investigated for creating “a hostile environment” by failing to address treatment of transgender students like “gender-based harassment” and “sex-stereotyping,” which could include “refusing to use a transgender student’s preferred name or pronouns when the school uses preferred names for gender-conforming students or when the refusal is motivated by animus toward people who do not conform to sex stereotypes,” wrote Candice Jackson, the department’s acting assistant secretary for civil rights. She seems to be referring to guidance on bullying the department issued in 2010.

That directions allow the agency to seek to address the common concern of bullying while staying away from the hot-potato issue of facilities access.

“It is the goal and desire of this Department that OCR approach each of these cases with great care and individualized attention before reaching a dismissal conclusion,” Jackson wrote. “Please evaluate each allegation separately, searching for a permissible jurisdictional basis for OCR to retain and pursue the complaint. It is permissible, for example, for one allegation in a complaint (such as harassment based on gender stereotypes) to go forward while another allegation (such as denial of access to restrooms based on gender identity) is dismissed.”

This action was a possibility discussed by Seth Galanter, a former principal deputy assistant secretary for human rights in Obama’s Education Department, in a Politics K-12 blog post. In her letter rescinding the guidance, Secretary of Education Betsy DeVos had asserted that an environment free from bullying and harassment is important for all students.

“It’s critical that Secretary DeVos confirm that transgender students have a legal right, and not just a moral right, to be safe in schools,” Galanter told my colleague Andrew Ujifusa in April.

“To avoid confusion, Secretary DeVos needs to instruct the OCR career investigators that they should continue to investigate claims of harassment against transgender students, and when they find a violation, obtain quick relief for the student.”

The department’s instructions will almost certainly not satisfy advocates for transgender students.

Restrictions on access to bathrooms and locker rooms that match a student’s gender identity are a form of state-sanctioned bullying in itself, those advocates argue, restricting a student’s ability to safely attend school and exist in a public space. And it appears that the guidance doesn’t require schools to use students’ preferred pronouns and names—only to require its students to adhere to that policy if it chooses to adopt it.

And the instructions to officials to rely on interpretations of federal courts may also create some confusion. Those courts have been split on what Title IX says about transgender students’ right to access school facilities, though a growing wave of decisions have fallen in favor of transgender students. The federal document did not cite any of those rulings.

Hours after the memo was leaked, LGBT rights group GLSEN said it was likely to complicate civil rights enforcement. It’s problematic that, while the memo doesn’t explicitly prohibit investigating facilities access for transgender students, it seems to shift the focus elsewhere and it doesn’t provide a clear position on whether and when such investigations are appropriate, the organization said.

“Today’s memo confuses the issue and does not explicitly address the trend in recent case law in favor of transgender students, most recently in the 7th Circuit Court of Appeals, Nathan Smith, GLSEN’s director of public policy, said in a statement. “We are concerned that this will result in the dismissal of complaints by transgender students without full investigation. Research has shown that 60% of transgender students have reported being required by their school to use a bathroom or locker room that does not match their gender identity. ... GLSEN asks the Department of Education and OCR officials to confirm whether or not the OCR will investigate reports of transgender students being denied equal access to school restrooms and other school facilities regardless of where the student lives.”

News about the department’s approach to transgender students comes as it narrows its overall approach to civil rights enforcement, limiting officials’ ability to explore systemic issues in response to complaints from individual students. You can read the whole document on transgender student rights here.

Image: Getty

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