According to a new exclusive report released by Huffington Post last week, discrimination complaints filed by transgender students with the Office for Civil Rights (OCR) are being dismissed outright. Transgender teens who fall victim to discrimination at the hands of their school will no longer have an avenue to address their concerns.
Transgender students face many discriminatory practices in public and private schools, the most pervasive of which is navigating gendered public washrooms in school buildings. Transgender students can face great fear and anxiety simply because they might have to use the bathroom. Because their gender identity does not conform to the gender they were assigned at birth, transgender students are at risk of facing discrimination, hostility, and even violence. All this is typified in a simple question: In a society where public-school washrooms are segregated according to the gender binary, who determines which public washroom transgender students should use?
As per the Trump administration, these complaints lie outside the purview of the OCR. This argument is based on an interpretation of Title IX of the Education Amendments of 1972, which dictate that any school receiving funding from the federal government is not to discriminate against a student based on sex. While sex-segregated bathrooms, locker rooms, and sports teams are allowed under this law, it is silent on the issue of whether sex can be determined on the basis of identity rather than biology.
The Trump administration’s Department of Education claims that discrimination complaints filed by transgender students lay outside the jurisdiction of its Office for Civil Rights. They reportedly are cutting down on investigations of civil rights complaints made by transgender students. This is a sharp departure from the Obama administration, which issued a guidance holding stating that a student’s gender identity is to be treated as the student’s sex so as to enforce Title IX and protect trans rights.
This guidance was rescinded by the Trump administration a few weeks after the inauguration. It was done on grounds claiming that discrimination against transgender teens is an issue that should be dealt with at the local level. As a result of this, there is currently no clarification on how the OCR is to handle discrimination complaints filed by trans students. Allegedly, an internal memo from the office states that employees are to simply dismiss these complaints.
In June of 2017, The Washington Post reported the shut down of 2 transgender student cases as the Trump administration attempted to scale back on its civil rights investigations. The Huffington Post additionally reported on 3 more such cases which are closed as of last week. This is contrary to a wave of decisions from district and circuit courts which reinforced trans rights under Title IX. Because of this, transgender students will be less likely to file complaints with the OCR in the Trump era. Reportedly, filed complaints have already dropped 40%.
As of now, Title IX prohibits discrimination based on sex. There is a further question as to whether Title IX protects transgender students under the same umbrella. The answer to this question is currently being litigated and will be determined as this narrative unfolds.
This blog post was written by a CCLA-PBSC RightsWatch student. Views expressed do not necessarily reflect the view of the CCLA or PBSC.