In Secretary Betsy DeVos’s latest deregulatory step, the Department of Education has said it will not investigate or take action on complaints from transgender students regarding the open use of restrooms in public schools.
The Obama administration had adopted a broad understanding of Title IX, the federal law that protects citizens from discrimination on the basis of sex. Under President Obama, the Department of Education ruled that “sex” also includes “gender identity.” Now that bureaucratic decision is being reversed.
“Title IX prohibits discrimination on the basis of sex, not gender identity. Therefore the question is whether a student (regardless of gender identity) has been discriminated against on the basis of sex,” Elizabeth Hill, a spokesperson for the department, told THE WEEKLY STANDARD. “In the case of bathrooms, however, long-standing regulations provide that separating facilities on the basis of sex is not a form of discrimination prohibited by Title IX.”
Hill said that until Title IX is updated or revised by Congress or the courts to include “gender identity,” the department will stick to what the written law says.
Transgender activists are displeased with the decision to rely on laws rather than bureaucratic interpretations. “This is an abdication of its job and a betrayal of hundreds of thousands of students who just want an equal chance to learn,” Harper Jean Tobin, director of policy for the National Center for Transgender Equality, said in a statement.
Tobin and other transgender advocates argue this new policy conflicts with the 6th and 7th Circuit federal appeals courts, which ruled in favor of a broader interpretation of Title IX last year: The 7th Circuit court unanimously ruled in favor of Ash Whitaker, a transgender student, in Whitaker v. Kenosha Unified School District, claiming that the student suffered “irreparable harm” and the “public interest” outweighed the traditional understanding of gender.
The court’s conclusion, however, has not been unanimously held by other courts, leaving Title IX ambiguous and up for debate. In 2016, for instance, a federal judge in Texas blocked the Obama administration’s open bathroom policy, saying the “guidelines” had the effect of law and contradicted existing legislation.
Attorney Joseph Wardenski, who argued Whitaker’s case before the 7th Circuit court last May, told Politico he expected the 7th Circuit’s ruling to become federal precedent. But since then, more than 14 states have considered legislation limiting transgender students’ access to bathrooms, according to the National Conference of State Legislatures.
“This isn’t a fully settled law,” Nathan Smith, policy director of the LGBTQ advocacy group GLSEN, told TWS. “The Supreme Court hasn’t ruled on it and Congress hasn’t elaborated on it, which has provided room for the Trump administration to reverse the policy.”
It remains to be seen if the Supreme Court will take up the question. Last March, after agreeing to hear the case of a transgender student fighting for open access to bathrooms, the Court took the case off its calendar. The Court offered no explanation for bumping the case from the calendar, but its decision to do so followed the Trump administration’s announcement that it would withdraw an Obama-era letter that said “a school generally must treat transgender students consistent with their gender identity.”
Smith claims the Obama administration’s letter provided guidance rather than regulation. But the Obama Education Department did much more than issue letters—it threatened to withdraw federal funding from schools that didn’t comply, and even brought lawsuits against states, such as North Carolina, that tried to maintain the privacy and safety of students by ensuring they used bathrooms and locker rooms corresponding with their birth gender.
This led 13 states to sue the Obama administration, arguing that, under Obama, the Departments of Education and Justice not only trampled on Congress’s role in writing the law, but also on the states’ sovereignty to enforce it.
Texas was one of the states to join the coalition and fight the Obama memorandum. Kayleigh Lovvorn, a spokesperson at the state’s attorney general office, said DeVos has restored a correct understanding of Title IX, since “Congress has always understood sex to be biological.”
“The Obama era bathroom guidance letter was a blatant attempt to rewrite clear congressional law,” Lovvorn told TWS. “The Trump administration returned to a correct interpretation of federal law by not adding terms Congress has repeatedly rejected. Secretary DeVos is simply fulfilling that proper interpretation by not investigating matters Congress has not allowed it to investigate.”
But Smith, the GLSEN policy director, says DeVos’s rescission of the Obama-era guidance “muddied the waters even more,” putting transgender students at risk: “Students are getting the message that the government not only doesn’t have their backs, but that it’s also working against them, based on this new policy decision.”
Hill naturally disagrees: “The secretary and the department believe strongly that all students are to be protected from harassment and bullying and have the opportunity to learn in a safe and nurturing environment,” Hill said.
Despite Smith’s claim that this policy reversal removed clarity, Hill says the law is clear: “Title IX prohibits discrimination on the basis of sex, not gender identity.”
