The Education Department said it will not investigate complaints from transgender students who have been denied access to bathrooms that correspond with their gender. BuzzFeed News broke the story on Monday.
The department responded to BuzzFeed’s question about whether the department’s current position is that bathroom complaints from trans students are not included in Title IX. Title IX is a 1972 civil rights law that says students should not be excluded from participation in, denied benefits of, or be subjected to discrimination in education programs receiving federal assistance.
Liz Hill, a spokesperson for the department responded, “yes, that’s what the law says” and maintains that Title IX “prohibits discrimination on the basis of sex, not gender identity.”
Transgender students, their families, and advocates for the rights of transgender students have been waiting on further clarity from the department since HuffPost reported last month that the department has specifically said they don’t have to handle three cases about transgender students’ experiences with school bathrooms or sports teams. The department also said complaints involving transgender students do not fall under its jurisdiction. Last week, parents of more than 700 students across the country wrote a letter to Education Secretary Betsy DeVos condemning the department’s policy approach toward transgender students, which so far, has been to ignore them.
“People who espouse hateful and transphobic views continue to hold positions of power in schools across the country, and are enabled now more than ever before by the poor example set by the federal government with regard to acceptance and support for all youth,” the parents wrote.
A year ago, the department rescinded 2016 guidance from the Obama administration on transgender students’ access to bathrooms. The administration’s draft letter to schools stated that “School administrators, parents and students have expressed varying views on the legal issues arising in this setting” and “struggled to understand” the 2016 guidance.
The Obama-era guidance said schools should respond promptly to harassment claims when it involved a trans student’s gender and that transgender students should be able to access bathrooms and locker rooms and belong to sports teams that match their gender identity. It also made clear that schools should be aware of a student’s gender and can’t ask students for a medical diagnosis or treatment before they act accordingly. But nearly half the states joined two lawsuits challenging protections for transgender students.
Catherine Lhamon, former head of the department’s Office for Civil Rights during the Obama administration, tweeted on Monday that the federal government is “further turning its back” on transgender students.
Federal government further turning its back on transgender students, abdicating federal enforcement responsibility for civil rights without Congressional authority. Totally inconsistent with the requirement that federal agencies enforce the law as written https://t.co/zmY6LcdWwv
— Catherine E. Lhamon (@CatherineLhamon) February 12, 2018
Lhamon told BuzzFeed News that the department’s response is inconsistent with the courts’ interpretation of Title IX. In May, a federal court ruled that the anti-discrimination law covered trans Americans. In the case of Whitaker v. Kenosha Unified School District, the federal appeals court ruled that a trans boy could use the boys’ bathroom under Title IX protections.
Harper Jean Tobin, policy director for the National Center for Transgender Equality, released a statement to ThinkProgress over email accusing the department of “ignoring the law —including rulings from two federal appeals courts—in favor of promoting discrimination against children.”
Trans students have stated that they avoid using the restroom all day, or avoid eating and drinking so that they will not have to. The Department appears to be saying it will turn its backs on these students even though courts have specifically said they are protected, forcing them to take the longer and far more costly route of suing in federal court. The Department also leaves students without any reason to have faith that it will help if they are outed and humiliated by school staff misgendering them every day, [or] suspended for following the dress code in a way that matches their gender identity.