Are they or aren't they?: Going to court in a time of rule change

Last week Erin wrote about a civil lawsuit against the government, which rescinded Obama-era guidance on Title IX's application to campus sexual assault, filed by groups who work to end sexual violence. This lawsuit, regardless of its success, illustrates the frustration with the current administration's lack of clarity on how and to what the law applies.

The confusion and frustration is also apparent in how transgender students' claims of discrimination are going to be handled by the Office of Civil Rights (OCR). The Huffington Post has reported on--at best--mixed messages about protecting transgender students. Almost a year ago, the administration said it would not apply Title IX to transgender students, in contrast to the previous administration. But in early summer, a memo internal to OCR said the office should still take complaints of discrimination from transgender students but that they may use their own discretion on whether to take on cases of bathroom discrimination. HuffPo reported several cases that were closed--without any investigation--when employees told complainants that these issues were not in their purview.

It is all very confusing. We do know that OCR's review of  cases featuring access to facilities for transgender students has decreased this past year from the previous one--because there are 40% fewer complaints in this area. This does not mean things are getting better. This means students and their allies do not trust the government. And they have no reason to.

A recent piece on the Daily Beast  discusses how transgender students should proceed in the current moment when we are hearing many and conflicting statements about how and whether transgender students will be protected. And the answer is: go to the courts.

Erin's two posts from last week about transgender students' success (at various levels of the process), though arguably anecdotal, reinforce the validity of this tactic; while the executive branch is broken, we should be looking to the courts.