An internal Department of Education memo that was recently circulated by the agency’s assistant secretary for civil rights leaves the door open to civil rights complaints against schools on behalf of transgender students, seemingly clarifying that the agency won’t be abandoning protections for this population.
Perhaps one of the more contentious reasons given in the memo for launching a complaint is if a school refuses “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.”
Assistant Secretary for Civil Rights Candice Jackson reportedly issued the guidance to implore the department’s investigators and lawyers to consider discrimination complaints by transgender students on an individualized basis, the Christian Post reported.
I consider protecting all students, including #LGBTQ students, not only a key priority for the Department, but for every school in America.
— Betsy DeVos (@BetsyDeVosED) February 23, 2017
The pronoun and preferred name issue is just one of the numerous potential reasons that a transgender student could seek to have a discrimination claim opened.
The memo permits officers to have “subject matter jurisdiction” in a variety of other situations, including when a district or school fails to fix an environment that is unfriendly to transgender students, according to the Los Angeles Times.
The document, which does not list transgender bathroom complaints as a viable reason to open a case, seems to be an effort to clarify the Trump administration’s February 2017 decision to rescind the Obama administration’s transgender guidance that pushed schools to allow students to use the bathroom corresponds with their gender identity.
The new memo also reaffirms language in the February revocation of the Obama-era guidance; it states that “withdrawal of these guidance documents does not leave students without protections from discrimination, bullying, or harassment.” While the memo does not list bathrooms as a reason to open a complaint, that doesn’t mean transgender students cannot do so, though, again, these cases will be handled on an individualized basis, as the document clearly states.
“It is permissible, for example, for one allegation in a complaint (such as harassment based on gender stereotypes) to go forward while another allegation (such as denial of access to restrooms based on gender identity) is dismissed,” the text reads.
Critics unleashed on the Trump administration after the bathroom guidance revocation decision was made, but the the new document seems to be an effort to afford discrimination protections to transgender students.
“It was very important to the secretary and to myself that our investigators not make the mistake of assuming that just because that particular guidance has been rescinded, that all complaints filed by transgender students are going to be dismissed,” Jackson told the Washington Post.
She continued, “We wanted to very carefully explain in written format to our field that every investigator assigned to one of these cases needs to go through and individually examine every complaint, and actively search for ways that OCR can retain jurisdiction over the complaint.”
As Faithwire previously reported, in a “dear colleague” letter dated Feb. 22, the Departments of Justice and Education wrote that they are “withdrawing the statements of policy and guidance reflected in” the joint letter that was issued by those same agencies to schools last year on behalf of the Obama administration.
The new letter states that the original neither properly addressed the Obama administration’s interpretation of Title IX discrimination law, nor did it undergo what the letter calls a “formal public process.” Due to these elements — and resulting legal challenges — the Trump administration chose to abandon the former “dear colleague letter.”
“These guidance documents take the position that the prohibitions on discrimination ‘on the basis of sex’ in Title IX of the Education Amendments of 1972 (Title IX), 20 U.S.C. § 1681 et seq., and its implementing regulations, see, e.g., 34 C.F.R. § 106.33, require access to sex-segregated facilities based on gender identity,” the letter reads. “These guidance documents do not, however, contain extensive legal analysis or explain how the position is consistent with the express language of Title IX, nor did they undergo any formal public process.”
In the end, this means that states and local school districts will be able to establish their own policies on this matter. Education Secretary Betsy DeVos has repeatedly reaffirmed protections for all students, including LGBTQ individuals.
(H/T: Christian Post)