More on the Rescission of OCR's Transgender Guidance

Following up on Kris's post from yesterday about the rescission of OCR's prior clarification about Title IX's application to transgender students, I wanted to contribute some additional points. First, in light of the existing injunction against the application of the guidance to "intimate spaces" like bathrooms and locker rooms, rescinding the guidance highlights the Department's lack of support for transgender students' rights and safety even outside of that context.  It is saying, essentially, that it will turn a blind eye to students who might be rejected or expelled from college because of their transgender status, and that it doesn't care if school district officials ignores bullying and harassment of transgender students. This is a harmful position for the federal government to take, especially in light of the fact that fewer than 20 states provide protection for transgender students facing harassment and discrimination.

That said, I need to emphasize that Title IX's dual enforcement mechanism give victims of sex discrimination two choices to assert their rights -- to complain to the Department of Education and/or to file a lawsuit.  Therefore, it is still possible for the courts to interpret Title IX to protect transgender students rights and to subject school districts/universities to liability for violating those rights.  This would not require an extreme or unusual interpretation of the law in most cases, as evidenced by numerous courts that have found that the the sex discrimination provision of Title VII protects transgender employees and job applicants who experience some forms of employment discrimination.  Even in the most challenging context, that of sex-segregated spaces like bathrooms, courts are capable of reading sex discrimination to mean discrimination based on transgender identity, which is an evaluation that takes sex into account, in that it considers of one's gender identity relative to one's (natal) sex.  Lawyers have their work cut out for them, but this is definitely not "game over" for transgender rights and Title IX.

Transgender protections to be eliminated

The rollbacks are beginning. It was--unfortunately--not very surprising to read that the current administration will not uphold the clarification which grants transgender students protection under Title IX.

Also unsurprising is that the meaning of this announcement is unclear. The current president stated, through his press secretary, that use of bathrooms and locker rooms in public schools should be an issue decided by the states. Because apparently the previous regs were too confusing and too hard to implement.

 However, there is some indication that the anti-bullying protections will remain. This would theoretically protect trans and gender non-conforming students; but not allow them to use the bathroom of their choice. But backlash could easily threaten these as well.

So that puts us back to the pre-clarification days of angry PTA meetings and offensive ads by "family values" groups.

Truthfully, of course, those angry meetings, the heartbreaking stories of students who are bullied, who are not supported by their communities and sometimes by their families, have persisted. But now those students cannot look to the government to protect them. They cannot gain validation from the fact that the actions of those around them are banned by the government. The misinformed ads will persist. They may, as we have seen in other arenas, become more overt, more vitriolic, more misinformed.

This is just the first move to weaken (possibly dismantle?) Title IX. We have a secretary of education who would not comment on Title IX enforcement (it's unclear if she knows what it is) and what appears to be the pending nomination of an OCR chief (assistant secretary for civil rights) who thinks the previous administration overstepped in regards to campus sexual assault provisions.

Here is the good news: we have a vibrant movement committed to reducing campus sexual assault and instituting and maintaining proper policies and procedures for dealing with the crime. In regards to protecting trans students, the fight will be more local. We have seen the backlash to HB2 in North Carolina. We can pressure state and local officials to make schools (and other spaces) safe for trans people. We can work within our own institutions to create gender inclusive environments.

Private School Suspends Girl Who Sued to Play on Boys' Team

The local news in New Jersey recently reported about the decision of St. Theresa's School in Kenilworth to expel a female seventh grade student and her sister after the seventh-grader's unsuccessful attempts to sue the school for the right to try out for the boy's basketball team. A judge ruled in January that she had no right under applicable law, and the family is appealing.

If this student went to public school, she would have a strong argument that the U.S. Constitution's Equal Protection Clause protects her right to try out for the boys' team, which is the only basketball team offered by her school. The Equal Protection Clause requires state and local governments, including school districts, to avoid generalizations and stereotypes when making any sex-based classification. Under this rationale, female students have prevailed in many cases seeking the right to try out for a variety of sports, including sports like basketball that are covered by Title IX's contact sports exemption.

If she went to public school, the student and her family would also have legal recourse to challenge the decision to expel the student and her sister as apparent retaliation for the family's decision to appeal, since Title IX provides strong protection against retaliation. But the majority of private religious elementary and secondary schools do not accept federal funding, insulating them from the obligation to protect students civil rights. Unless St. Theresa's is among those private schools who participate federal programs to subsidize student's school lunches or to purchase classroom technology, the student and her family cannot rely on this statute for recourse.

Often when I write posts about stories where Title IX did not apply, I make the point that students and their families need to be careful when selecting private schools, since that decision often subjects the student to sex discrimination without legal recourse. But it also a cautionary tale against privatization as a policy matter. If federal support for public schools wains or disappears under the current administration -- a possibility signaled by president's nomination of Betsy DeVos -- more and more families may be compelled to accept private schools as a result. This shift would send more and more students like this one into the void of civil rights, with no statutory or constitutional protections available.