Law & Courts

Feds Probing Transgender Policy, Alleged Assault

By Evie Blad — October 09, 2018 3 min read

The U.S. Department of Education’s office for civil rights will investigate whether a Georgia school district created a “hostile environment for girls” when it implemented a policy that allows transgender students to use restrooms and locker rooms that correspond with their gender identities.

The investigation comes after a parent claimed their daughter was sexually assaulted in a girls’ restroom at a Decatur City elementary school “by a male student who identified as gender fluid,” according to a Sept. 14 letter from the federal agency to an attorney for Alliance Defending Freedom, a conservative Christian organization that has opposed transgender student policies and helped file the Georgia complaint.

The office for civil rights will investigate both the district’s policy and how officials handled the family’s sexual assault complaint.

The district responded in a statement that said it is “committed to supporting all students.”

“We are aware of the unfounded allegations made by the Alliance Defending Freedom,” the statement said. “We fully disagree with their characterization of the situation and are addressing it with the Office of Civil Rights.”

Hostile and Unsafe?

If the complaint is found to be valid, the investigation could trigger a dramatic shift for how transgender students are treated in public schools and set the stage for legal battles between the federal government—which currently takes no position on transgender student rights—and states that identify gender identity as a protected class in their own laws and policies.

A growing number of states have such nondiscrimination laws, which require schools to allow transgender students to use the restrooms and locker rooms of their choice. At issue in the complaint: Do such policies violate Title IX, the federal law that prohibits sex discrimination in schools, by creating a hostile and unsafe environment for girls?

The office for civil rights has some discretion in what complaints it investigates, taking several steps to determine if the complaint falls under applicable civil rights laws. An investigation does not imply that the agency has determined the complaint has merit, the letter said.

One of U.S. Secretary of Education Betsy DeVos’ first official actions was to rescind Obama-era guidance, issued in 2016, that said public schools must allow transgender students to use the restrooms and locker rooms that match their gender identity, or risk a federal civil rights investigation. Citing growing court precedent, that guidance argued that Title IX applies to gender identity, rather than sex. In rescinding the guidance, DeVos and U.S. Attorney General Jeff Sessions took no position on the issue, leaving it to states and districts to interpret federal law.

Advocates for transgender students argue that allowing them access to school facilities that match their gender identity is an issue of basic dignity. In state-level hearings over possible school restrictions, mothers of some transgender students said their children had grown dehydrated when they refused to drink water at school to avoid the need to use restrooms where they felt unsafe.

Several federal judges have sided with transgender students in lawsuits over the issue, citing Title IX and the equal protection clause to the U.S. Constitution.

But opponents of providing such access argue that it violates the privacy rights of other students and creates potential safety risks if, for example, boys use them as an excuse to use girls’ facilities.

“This situation was both deeply tragic and avoidable,” Alliance Defending Freedom Attorney Christiana Holcomb said in a statement.

“Schools have a duty to protect the privacy and safety of all students and Decatur Schools clearly failed this young girl. The current approach that many schools are taking of passing these transgender bathroom policies isn’t working; they fail to provide basic privacy or ensure the safety of all students.”

Advocates for transgender students pushed back. Schools have accommodated transgender students without problems for years, they said.

“Every allegation of sexual assault must be taken seriously, and each deserves a full, thorough investigation that respects the rights and privacy of survivors,” the National Center for Transgender Equality said in a statement. “We are deeply concerned, however, that the Department of Education will inject politics and ideology into its investigation of the school’s handling of this incident,” the center’s statement said. “We know that policies affirming the rights of transgender students do not increase the safety risks for any child.”

A version of this article appeared in the October 10, 2018 edition of Education Week as Feds Probing Transgender Policy, Alleged Assault

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