In a letter sent to employees earlier this month, the Department of Education’s Office of Civil Rights outlined broad guidelines regarding what gender-based allegations of misconduct in schools constitute grounds for OCR investigation, including refusal to use preferred pronouns for transgender students.
Though the letter acknowledges the department’s February withdrawal of Obama-era guidelines related to transgender students, it could signify a departmental ambition to reinsert federal authority where Secretary Betsy DeVos and Attorney General Jeff Sessions stepped back.
Referring to the Obama-era guidelines, the letter, dated June 6, states, “OCR may not rely on the policy set forth in the May 2016 DCL or the Jan. 7, 2015 letter to a private individual as the sole basis for resolving a complaint. However, as was stated in the February 22, 2017, letter, ‘withdrawal of these guidance documents does not leave students without protections from discrimination, bullying, or harassment.'”
When “other jurisdictional requirements have been established,” the letter informs staff that the OCR “may assert subject matter jurisdiction over and open for investigation” a list of allegations involving sex and gender-based conflicts. The language used to define those allegations, most of which involve the failure to resolve disputes, is notably broad.
For example, one item on the list is simply, “different treatment based on sex stereotyping (e.g., based on a student’s failure to conform to stereotyped notions of masculinity or femininity).”
Another is failure to assess whether “gender-based harassment … of a transgender student created a hostile environment.” For this bullet point, the letter outlined examples, saying this could include “sex stereotyping, such as acts of verbal, nonverbal, or physical aggression, intimidation, or hostility based on sex or sex-stereotyping.” That, the letter specified, could come in the form of “refusing to use a transgender student’s preferred name or pronouns when the school uses preferred names for gender-conforming students or when the refusal is motivated by animus toward people who do not conform to sex stereotypes.”
Implicit from that specific guideline is that the Department of Education, even under Trump-nominated Betsy DeVos, considers refusal to use transgender pronouns an act of gender-based harassment. But, as The College Fix noted, “The instructions, dated June 6, aren’t clear whether students who refuse to call transgender peers by their preferred names and pronouns — perhaps simply declining to use pronouns at all — could be grounds for an OCR probe.”
The full document is available here.
DeVos and Sessions framed their withdrawal of the Obama administration guideline, which mandated that schools allow students to use the bathroom that corresponds to their “gender identity,” as an effort to curtail government overreach. The Obama directive conflated sex with gender identity to argue transgender bathroom use fell under the scope of Title IX. In February, the New York Times reported that DeVos was hesitant to issue the withdrawal, though she eventually defended the decision at CPAC.
The letter’s broad language raises more questions than it answers. Activists on both ideological sides of the debate have expressed dissatisfaction with it, arguing, for instance, that it amounts to a “compelled speech violation” or is dangerously unclear on bathroom rights.
Protecting every student regardless of their relationship with sex and gender, as DeVos has emphasized, is a serious duty. But giving the federal government authority to investigate people for refusing to use preferred gender pronouns in schools, and declaring that doing so constitutes an act of harassment, is not in line with conservative efforts to curtail government overreach in Washington.
Emily Jashinsky is a commentary writer for the Washington Examiner.
