Tag: Department

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

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.

Broken pencil

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.

Same-Sex Parents Win as State Department Backs Down in Two Cases Challenging Children’s Citizenship

Same-Sex Parents Win as State Department Backs Down in Two

In a significant victory for same-sex parents, the U.S. State Department on Monday backed down in two cases where it had been challenging the citizenship of children born abroad to married two-dad couples who were U.S. citizens.

Kiviti and Mize-Gregg families

The State Department withdrew its appeal in Kiviti vs. Pompeo, a case involving dads Roee and Adiel Kiviti, who legally married in California in 2013, and had their daughter Kessem via surrogacy in Canada in 2019. Because Kessem was born outside the U.S. and only has a biological connection to Adiel, however, the State Department considered Kessem as “born out of wedlock.” The department would not grant her citizenship unless she had a biological relationship to a U.S. citizen parent who had resided in the U.S. for five years. Even though both Roee and Adiel are U.S. citizens, Adiel was born in Israel and was one year short of the residency requirement.

The dads sued the State Department in 2019 with the help of Lambda Legal and Immigration Equality and pro bono counsel Morgan Lewis, arguing that the residency requirement didn’t apply to the children of married U.S. citizens. The U.S. District Court for the District of Maryland ruled in June that Kessem should be granted citizenship and that the Immigration and Nationality Act “does not require a biological relationship with both parents.”

After this week’s withdrawal by the State Department, Roee Kiviti said in a press statement:

We are very relieved, on behalf of our daughter, on behalf of our family, and on behalf of LGBT families across this great country of ours. The law was always clear. We knew it, the courts knew it, and now the State Department knows it, too.

Adiel Kiviti added:

This was never just about us. It was always about standing up for what’s right. We are grateful to those who did it before us, and we are humbled to be a part of the ongoing struggle for justice.

The State Department also said this week that it would not appeal the district court’s decision in Mize-Gregg v. Pompeo, where it had been challenging the citizenship of Simone Mize-Gregg, daughter of U.S. citizen’s Derek Mize and Jonathan Gregg. The men had legally married in New York in 2015 and now live in Atlanta, Georgia. In 2018, they had Simone via surrogacy in England and both fathers are listed on her birth certificate. Gregg himself had been born in London to a married U.S. citizen and was therefore a U.S. citizen since birth—but like Adiel Kiviti, was short of the five-year residency requirement in the U.S. That should not have been an issue, however, since he was married to a U.S. citizen—but the State Department refused Simone’s citizenship, treating her as “born out of wedlock.” The dads sued the State Department in 2019 with the help of the same organizations as the Kivitis. The U.S. District Court for the Northern District of Georgia found in their favor  August.

Mize and Gregg said in a statement yesterday after the State Department said it would not appeal that decision:

We are extremely grateful that this fight is over and won. All we ever wanted was for Simone to be treated fairly. This process has reaffirmed for us that standing up for equal treatment is always right, no matter how difficult it is or long it may take.

Two more couples have sued the State Department for similar reasons. In October, the Ninth Circuit Court of Appeals ruled in favor of the Dvash-Banks family, recognizing their child’s birthright citizenship. And a case involving two moms is now before a district court in New Jersey. There’s no word yet on whether the State Department will withdraw in these cases as well, but as Omar Gonzalez-Pagan, senior attorney at Lambda Legal and one of the lawyers for the families, said yesterday, “We hope that the Trump Administration and the State Department will abide by these courts’ decisions when it encounters other families headed by same-sex couples. No family should have to go through what the Kiviti and Mize-Gregg families endured.”