For transgender students under the Trump administration, figuring out the Department of Education’s stance on their rights has been one lengthy homework assignment.
Last February, the Department of Education and the Department of Justice rescinded Obama-era guidance which held that transgender students had a Title IX right to use restrooms corresponding to their gender—a seemingly clear-cut retreat from a more protective stance.
But Secretary Betsy DeVos insisted in a follow-up statement that the Department of Education’s Office of Civil Rights “remains committed to investigating all claims of discrimination, bullying, and harassment against those who are most vulnerable in our schools”—and then in June, an internal memo said that the OCR should still “rely on Title IX” when it comes to “evaluating complaints of sex discrimination against individuals whether or not the individual is transgender.”
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One OCR employee anonymously told the Washington Post that the memo was a “green light” to process cases brought by transgender students, even if they had to do with restroom use.
But now, according to an exclusive report from HuffPost on Tuesday, the Department of Education’s Office of Civil Rights may now be altogether dismissing complaints from transgender students regarding restroom discrimination.
HuffPost reportedly uncovered three new cases of OCR officials telling transgender students that they were no longer handling such complaints. According to an OCR letter obtained by the outlet, one transgender teenager in Texas who was allegedly denied use of the boys’ restroom was told: “OCR determined we not have subject matter jurisdiction over Allegation 1, insomuch as the alleged discriminatory conduct you described does not raise any prohibitive bases under the civil rights laws OCR enforces.”
In other words, the letter suggests that the OCR may no longer consider Title IX’s ban on sex discrimination to apply to transgender students’ restroom rights—even though multiple federal courts have now ruled in favor of transgender students who have faced restroom discrimination. (The Department of Education acknowledged but did not immediately respond to The Daily Beast’s request for comment on this story.)
“It is now clearly a waste of time to go to the Department of Education and file a charge of discrimination but it’s not a waste of time to go to court,” James Esseks, Director of the LGBT and HIV Project for the American Civil Liberties Union, told The Daily Beast in an interview.
In fact, Ash Whitaker, a transgender student who sued the Kenosha Unified School District in Wisconsin secured an $800,000 settlement in his case last month, after the Seventh Circuit Court of Appeals unanimously ruled in his favor last May. That Seventh Court Ruling, as the Transgender Law Center noted, protected Whitaker’s restroom rights by citing both Title IX and the Fourteenth Amendment’s equal protection clause.
So, even if the OCR is no longer handling certain complaints from transgender students, the judicial system may still provide recourse in the event of being denied access to restrooms or other accommodations.
“The primary legal action that can be taken is that students can sue the schools where they are facing harassment and discrimination,” Esseks said. “Because the key thing to remember is that neither the Department of Justice nor the Department of Education decide what the law is; the courts decide what the law is—and increasingly, the courts are agreeing that trans folks are covered by the bans on sex discrimination.”
But although the Department of Justice does not have the ultimate authority in defining law, it can certainly wield tremendous influence by interpreting it. Jeff Sessions’ Justice Department has long been retreating from the position that federal-level bans on sex discrimination protect transgender people.
First, there was the February 2017 joint letter from the Department of Justice and the Department of Education claiming that the Obama administration did not do “extensive legal analysis or explain how [their] position is consistent with the express language of Title IX”—a clear indication that the Trump administration might be looking to unravel federal-level transgender protections.
And then, in October, as the New York Times reported, Sessions told the Justice Department that the Civil Rights Act’s ban on sex discrimination does not apply to transgender employment discrimination cases—even though the Equal Employment Opportunity Commission still, according to its website, “interprets and enforces Title VII’s prohibition of sex discrimination as forbidding any employment discrimination based on gender identity or sexual orientation.”
Effectively, then, the HuffPost report about a transgender student’s restroom complaint being dismissed because none of the “civil rights laws OCR enforces” would apply could be an indication of the wide influence of the Justice Department’s stance on transgender rights across the entire Trump administration.
“I do think when the Justice Department says this is what federal law means, that sets the rule for the federal government,” Esseks told The Daily Beast. “I don’t think the Department of Education has any real choice about that.”
Esseks is still optimistic that the Trump administration’s hand could be forced—that, one day, “as the law gets clearer from the courts, the Justice Department and the Education Department are going to have no choice but to follow [it]”—but in the meantime, the details of the HuffPost report offer a sobering rejoinder to DeVos’ insistence last year, after rescinding the transgender restroom guidance, that the Education Department “remains committed” to “vulnerable” students.
“I think that what we’re hearing is happening now in terms of dismissing these cases is [that] they are abandoning people, they are walking away from trans people, and I think that’s sad,” Esseks said. “It seems difficult to me how they can hide from that now.”
