DeVos’ Department of Education Says Transgender Students Not Protected; Must Be Treated According to Biological Sex

DeVos' Department of Education Says Transgender Students Not Protected; Must
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U.S. Secretary of Education Betsy DeVos made sure she struck one more time at LGBTQ youth as she stepped down last week, with her department issuing a memo saying that “gender identity” was not protected under laws that ban discrimination on the basis of sex, and that schools are within their rights to misgender transgender students and force them to participate in programs and use facilities based on their biological sex.

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The memo (PDF), from Kimberly Richey, acting assistant secretary of the Department of Education’s (DOEd’s) Office for Civil Rights, says the term “sex” in Title IX, which prohibits sex-based discrimination in any school or other education program that receives federal taxpayer money, is defined only as “biological sex, male or female.” This means, among other things, that it’s okay for schools to ignore a student’s required pronouns and to ban them from participation in an activity meant for someone of the “opposite sex”:

We believe a recipient [of funds from the DOEd] generally would not violate Title IX by, for example, recording a student’s biological sex in school records, or referring to a student using sex-based pronouns that correspond to the student’s biological sex, or refusing to permit a student to participate in a program or activity lawfully provided for members of the opposite sex, regardless of transgender status or homosexuality.

Additionally, the memo says that Title IX requires schools to have transgender students participate in athletics and use school bathrooms and locker rooms according to their biological sex:

We believe the ordinary public meaning of controlling statutory and regulatory text requires a recipient providing separate athletic teams to separate participants solely based on their biological sex, male or female, and not based on transgender status or homosexuality, to comply with Title IX…. [and] requires a recipient providing “separate toilet, locker room, and shower facilities on the basis of sex” to regulate access based on biological sex.

Under Title IX, it says, schools may also legally consider only biological sex, and not lived gender, in admissions to single-sex institutions; single-sex housing; membership in social organizations like fraternities, sororities, and the Girl Scouts; “separate mother-daughter and father-son activities;” single-sex classes and extracurricular activities, including human sexuality classes and physical education classes involving contact sports.

The memo is framed as a response to Bostock v. Clayton County, a U.S. Supreme Court ruling that was one of the few good things to come out of 2020. That ruling says that Title VII of the Civil Rights Act of 1964, which prohibits discrimination in employment based on sex, also necessarily prohibits discrimination based on sexual orientation and gender identity. Title IX was also enacted (in 1972) as a follow up to the Civil Rights Act. The DOEd memo looks at how Bostock may also have impacted the way Title IX is interpreted, with the DeVos DOEd concluding that it doesn’t—and doubling down on an interpretation of Title VII that ignores and harms transgender students.

One area where Bostock may offer some protections to LGBTQ students, the memo says, is sexual harassment:

Consistent with Bostock, harassment on the basis of a person’s transgender status or homosexuality may implicate that person’s biological sex and, thus, may at least in part constitute “conduct on the basis of sex.” Accordingly, unwelcome conduct on the basis of transgender status or homosexuality may, if so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity on the basis of their transgender status or homosexuality, constitute sexual harassment prohibited by Title IX.

That’s little solace, though, when other policies are designed to exclude and ostracize, potentially stirring up harassment. Alphonso David, president of the Human Rights Campaign, said in a statement that “The memorandum refusing to apply Bostock to federal education law is unconscionable and legally flawed.”

Although the memo is dated January 8, one day after DeVos’ resignation, it must have been in preparation for some time before then—and really comes as no surprise. In 2017, the DOEd withdrew guidance instituted by the Obama administration, which had said that discrimination against transgender students on the basis of gender identity violates Title IX. While guidance doesn’t create new law, it clarifies how the relevant federal departments will evaluate whether a person or institution is complying with existing law.

Now, DeVos DOEd is leaving the government with guidance that will cause harm to transgender students by not letting them live their truths and make them more vulnerable to bullying and harassment. (If you think a trans girl won’t get harassed if she’s forced to use the boys’ bathroom, you’re fooling yourself.) In her resignation letter, in which she condemns the “violent protestors” in the capitol, DeVos said, “Impressionable children are watching all of this, and they are learning from us. I believe we each have a moral obligation to exercise good judgement and model the behavior we hope they would emulate.” She would do well to consider how those words apply in other areas as well.

Joe Biden’s website however, promises: “On his first day in office, Biden will reinstate the Obama-Biden guidance revoked by the Trump-Pence Administration, which will restore transgender students’ access to sports, bathrooms, and locker rooms in accordance with their gender identity. He will direct his Department of Education to vigorously enforce and investigate violations of transgender students’ civil rights.” January 20th can’t come soon enough.

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