A spokeswoman for the Department of Education confirmed on Monday that the department is no longer investigating civil rights complaints from transgender students banned from using bathrooms conforming with their gender identity.
The development reverses 2016 guidance by the Obama administration that directed public school students to use the bathroom that matched their gender identity. The Obama administration’s position was that Title IX, the federal law that bans sex discrimination in schools, protects transgender students.
The Education Department under the Trump administration has a different interpretation of Title IX.
“Title IX prohibits discrimination on the basis of sex, not gender identity,” Education Department spokeswoman Elizabeth Hill told CNN Monday. “Therefore the question is whether a student (regardless of gender identity) has been discriminated against on the basis of sex. 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. In the case of bathrooms, however, longstanding regulations provide that separating facilities on the basis of sex is not a form of discrimination prohibited by Title IX.”
“The secretary would contend that it is the job of Congress or the courts, not the bureaucracy, to determine whether or not the term ‘sex’ under Title IX encompasses ‘gender identity,’” Hill added.
The Education Department’s Office for Civil Rights “continues to use current law and current regulation to determine if any child in school is being harassed or discriminated against due to race, sex, or disability,” Hill said. “The secretary and the department believe strongly that all students are to be protected from harassment and bullying and have the opportunity to learn in a safe and nurturing environment.”
Washington Sen. Patty Murray, the top Democrat on the Senate’s Health, Education, Labor and Pensions Committee, said that “choosing to ignore the rights of transgender students and to not enforce Title IX when it comes to their protection is an unambiguous step backwards for civil rights in this country.”
The development, which was first reported by BuzzFeed News, was widely criticized by civil rights groups, who said it could endanger the welfare of transgender students.
“While civil rights advocates have suspected that the Department of Education was not acting on complaints brought forward by transgender students, reports that these violations are completely being ignored are reprehensible,” said HRC Legal Director Sarah Warbelow. “The department’s failure to act conflicts with the law in multiple jurisdictions, including federal circuits, and further emboldens those who seek to discriminate against transgender students. Once again, Secretary [Betsy] DeVos proves she is not interested in protecting transgender students and instead is choosing to advance the dangerous Trump-Pence anti-LGBTQ agenda.”
Eliza Byard, the executive director of GLSEN, called the Department of Education’s decision not to investigate the complaints “cruel” and said the department’s policies were “hurting transgender students in concrete and far-reaching ways.”
“Congress created the Office for Civil Rights at the Department of Education in order to ensure that marginalized and vulnerable students had a champion. Under Secretary DeVos, the office has abdicated that solemn responsibility for transgender youth,” Byard said. “OCR’s cruel new policy flies in the face of the highest court rulings on this issue, which found unequivocally that denying transgender students appropriate bathroom access is a violation of Title IX.”