Two of President Trump’s cabinet members testified on Capitol Hill Tuesday and both explicitly confirmed that they have abandoned their departments’ previous support for protecting transgender people from discrimination. In matters of both housing and education, trans people are on their own.
Under questioning from Rep. Mike Quigley (D-IL), Housing & Urban Development Secretary Ben Carson admitted that he has delayed implementing homeless shelter protections for transgender people because it’s “a very complex issue.” By “complex,” he means that he’s catering to those prejudiced against trans people who fear sharing facilities with them.
“We obviously believe in equal rights for everybody, including the LGBT community,” Carson said, “but we also believe in equal rights for the women in the shelters and shelters where there are men and their equal rights.” Quigley pressed him on how protecting transgender homeless people would impede other people’s rights.
“I’ll give you an example,” Carson replied. “There are some women who said they were not comfortable with the idea of being in a shelter, being in a shower, and [there being] somebody who had a very different anatomy.”
The problem with Carson’s response is that the guidance he’s refusing to implement already accounts for the concerns he expressed. Published three years ago, the rule says that if shelters have concerns about privacy or safety, it must take steps to address them without refusing service to transgender people or segregating them. It explicitly provides suggestions for these accommodations and even notes that funding is available to assist with necessary renovations:
This may include, for example: responding to the requests of the client expressing concern through the addition of a privacy partition or curtain; provision to use a nearby private restroom or office; or a separate changing schedule. The provider must, at a minimum, permit any clients expressing concern to use bathrooms and dressing areas at a separate time from others in the facility. The provider should, to the extent feasible, work with the layout of the facility to provide for privacy in bathrooms and dressing areas. For example, toilet stalls should have doors and locks and there should be separate showers stalls to allow for privacy.
Carson recently proposed removing HUD’s commitment to nondiscrimination from its mission statement and he has a long history of flagrantly anti-LGBTQ positions. Implying that transgender people deserve to be homeless just because of their “anatomy” is simply the latest addition to that litany.
Education Secretary Betsy DeVos, still fresh off her disastrous 60 Minutes interview, also testified before Congress on Tuesday. Rep. Mark Pocan (D-WI) asked her about the department’s recent announcement that it would no longer consider Title IX complaints from transgender students denied access to bathrooms, locker rooms, or sports teams consistent with their gender identity. Title IX protects students on the basis of “sex,” but Devos confirmed she does not believe that applies to transgender students.
“Until either the Supreme Court or Congress clarifies the law with regard to transgender access to bathrooms, locker rooms, and athletic teams, that is not an area where law has been clarified,” she said. “This department is not going to make law. We are going to continue to enforce laws that we are given to do.”
Her claim that the department cannot “make” law ignores that it’s the department’s job to interpret the law. The Obama administration believed that Title IX does protect transgender students, but DeVos reversed that guidance. Several courts have ultimately agreed with the Obama administration’s interpretation, because if Title IX doesn’t recognize transgender students’ gender identities, then they are actually less protected under the law than their cisgender peers. If the law says that a transgender boy is only protected for being mistreated as a girl because he was assigned female at birth, he wouldn’t be protected at all because he’s a boy and would thus never file a complaint that he was being unfairly treated as a girl.
Just over a week ago, a federal judge in Maryland ruled that transgender students are protected under Title IX because discrimination against them constitutes gender stereotyping. Last year, the U.S. Court of Appeals for the Seventh Circuit issued a similar ruling, explaining, “A policy that requires an individual to use a bathroom that does not conform with his or her gender identity punishes that individual for his or her gender non‐conformance, which in turn violates Title IX.” It’s a recognition that all individuals have a gender identity, but only those who are transgender are punished for conforming to it.
DeVos, like Carson, has a long history of anti-LGBTQ views, which seemingly explains her decision far more than her own excuse about “making law.” But she did have one moment of possible comeuppance on these issues during Tuesday’s hearing.
DeVos has stood firm in past hearings that schools with policies explicitly discriminating against LGBTQ students or students from LGBTQ families should nevertheless continue to be eligible for federal funding. Rep. Katherine Clark (D-MA) once again grilled her on this matter on Tuesday, noting that the Education Department’s budget calls for over $1 billion to be allocated to school choice initiatives, which would then subsidize many of the religious schools with discriminatory policies.
DeVos insisted, “Where federal dollars flow, federal law must be adhered to,” leaning on her crutch that federal law (according to her interpretation) offers no such protections to LGBTQ students. Clark repeatedly demanded a yes-or-no answer as to whether DeVos would exclude schools from funding if they have discriminatory policies, and DeVos finally conceded, “Yes,” though it’s still not clear that she was agreeing about policies impacting LGBTQ students and families.
Nevertheless, Clark accepted the concession. “Took a year,” she quipped.