The Education Department has told BuzzFeed News it won't investigate or take action on any complaints filed by transgender students who are banned from restrooms that match their gender identity, charting new ground in the Trump administration's year-long broadside against LGBT rights.
It’s the first time officials have asserted this position publicly as an interpretation of law. No formal announcement has been made.
For nearly a year, the Trump administration took a less clear stance, with officials saying they were studying the issue. When the Education Department and Justice Department withdrew Obama-era guidance on transgender restroom access in February 2017, Trump’s officials said in a memo and court filings that they would "consider the legal issues involved.” Then last June, the Education Department issued another memo saying it was "permissible" for its civil rights division to dismiss a trans student's restroom case. However, in those statements, officials never cemented their intent to reject all restroom complaints issued by trans students.
For the past three weeks, BuzzFeed News called and emailed Education Department officials attempting to pinpoint the agency’s position.
Finally on Thursday, Liz Hill, a spokesperson for the agency, responded “yes, that’s what the law says” when asked again if the Education Department holds a current position that restroom complaints from transgender students are not covered by a 1972 federal civil rights law called Title IX.
Asked for further explanation on the department’s position, Hill said Friday, “Title IX prohibits discrimination on the basis of sex, not gender identity.”
She added that certain types of transgender complaints may be investigated — but not bathroom complaints.
“Where students, including transgender students, are penalized or harassed for failing to conform to sex-based stereotypes, that is sex discrimination prohibited by Title IX,” Hill said. “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.”
The bathroom rule is the Trump administration's latest step to rescind and undermine LGBT protections. Attorney General Jeff Sessions withdrew a policy protecting transgender workers, while he took the unusual step of jumping into a private lawsuit arguing that anti-gay discrimination was permissible in employment under federal law. Sessions has also argued religious business owners can refuse service to gay customers, even when anti-gay discrimination is banned by state law, and Trump has attempted to ban transgender people from all military service.
Catherine Lhamon, who led the Education Department's Office for Civil Rights during the Obama administration, said the new school-restroom policy is legally dubious.
“Until now, the official position of the Department has been that Title IX protects all students and that they were evaluating how that protection applies to the issue of bathroom access,” she said in an email to BuzzFeed News. “This new categorical bar of civil rights protection for transgender children required to attend schools every day ignores the text of the law, courts' interpretation of the law, the stated position of the Department to date, and human decency.”
The Education Department’s stance conflicts with two federal appeals courts, which held that Title IX guarantees transgender students’ access to restrooms matching their gender identity. Lower courts have been divided on the matter.
Although Hill said “the law says” transgender student restroom complaints aren’t covered by Title IX, the law does not say that.
Title IX of the Education Amendments of 1972 says it bans discrimination "on the basis of sex" in publicly funded education settings. Does that exclude transgender restroom disputes? The plain text of the law, as some federal judges have noted, does not answer the question. It’s ambiguous, they say. The term "sex” — including in the law concerning separate restrooms — is not defined as referring to gender identity or a person’s sex as identified at birth.
But insofar as Title IX needs clarity, the highest courts in the United States to contemplate the law’s scope found it does, in fact, confer transgender students the right to use public school restrooms matching their gender identity.
Most recently, in May 2017, a unanimous three-judge panel for 7th Circuit wrote in Whitaker v. Kenosha Unified School District that a “policy that requires an individual to use a bathroom that does not conform with his or her gender identity punishes that individual for his or her gender non‐conformance, which in turn violates Title IX."
The school district in Wisconsin then paid $800,000 to settle the complaint.
Harper Jean Tobin, policy director for the National Center for Transgender Equality, told BuzzFeed News, “It marks a shift in position for the Education Department that is particularly remarkable in light of case law."
For the department to neglect those decisions, Tobin said, is to "ignore the law in favor of their ideology."
Hill did not answer questions about how the department reconciles its position with conflicting circuit court rulings, or why it won’t accept the complaints arising even from students inside those circuits (which encompass Illinois, Indiana, Kentucky, Michigan, Ohio, and Tennessee, and Wisconsin).
In May 2016, the Obama administration issued guidance that said Title IX ensures transgender students can use restrooms and other school facilities in accordance with their gender identity. (A district court suspended that guidance after a challenge led by the state of Texas.) But even before it had guidance on the matter, the Obama administration enforced this view of Title IX in 2013.
With Trump in office, the Justice Department and Education Department sent a Dear Colleague letter to local officials in February 2017 rescinding Obama-era guidance. But the Trump administration letter did not assert a position on what Title IX required, instead announcing that officials were going to "more completely consider the legal issues involved." It made similar statements in briefs filed at the Supreme Court and US District Court in North Carolina.
In June 2017, Candice Jackson, acting head of the Education Department's Office for Civil Rights, issued a memo that said it would be "permissible" for a complaint concerning a restroom to be dismissed. But that memo did not assert any interpretation of the law or a general rule for handling such complaints.
The Justice Department said in October that Title VII of the Civil Rights Act of 1965, which bans sex discrimination in the workplace, does not protect transgender people.
But it did not make such a clear statement on the education law. Rescinding the school guidance created the absence of a position for recipients of federal education money.
Officials at the Education and Justice Department’s did not answer questions from BuzzFeed News about when they stopped considering transgender student restroom complaints as a matter of policy and how many of those complaints have been rejected.
A Justice Department official told BuzzFeed News on Friday, “The Department of Justice cannot expand the law beyond what Congress has provided. The Department of Justice remains firmly committed to protecting the civil and constitutional rights of all Americans, and will aggressively enforce all civil rights laws enacted by Congress.”
But Lhamon disagreed, given her view that Title IX doesn’t actually tie the administration's hands.
"That interpretation represents an appalling abdication of federal enforcement responsibility, inconsistent with the law and with courts’ interpretation of the law, and totally lacking in human compassion for children in school, whom the Department is charged to protect,” she said.