Is Betsy DeVos’ Education Department Pro- and Anti-Trans?

For transgender students, it’s impossible to separate bullying from bathrooms. They are the peanut butter and jelly in the awful sandwich that is their school experience.

But treating bullying and bathrooms separately is exactly what the Department of Education’s new guidance on transgender students could permit.

In a three-page memo dated June 6—and first reported by the Los Angeles Times last Friday—the Department of Education’s Office of Civil Rights gave new instructions to its regional directors regarding the enforcement of Title IX in transgender student rights cases.

Although the memo makes it clear that OCR can still evaluate Title IX sex discrimination complaints brought by “individuals whether or not the individual is transgender,” it pointedly does not address the restroom issue.

In fact, as several media outlets have noted, it only cites bathroom access complaints as an example of an “allegation” that might be “dismissed.”

“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 memo states.

One anonymous OCR employee has told the Washington Post in an unauthorized conversation that they are still allowed to process discrimination complaints regarding restroom access.

However, that possibility is not laid out in the memo itself.

In fact, the memo includes a fairly detailed list of potential allegations which would fall under the OCR’s purview—including “verbal, nonverbal, or physical aggression” and “refusing to use a transgender student’s preferred name or pronouns”—without including restroom access.  The Department of Education did not immediately respond to request for clarification.

This new memo was released to fill the gap left in February after the Trump administration rescinded the Obama administration’s previous and more comprehensive guidance, which had instructed school districts to allow transgender students to use restrooms matching their gender

The rescinding of that guidance also led the Supreme Court to remand transgender teenager Gavin Grimm’s potentially precedent-setting case back to the Fourth Circuit level, effectively hitting reset on much of the progress made on this issue under the Obama administration.

In February, however, Education Secretary Betsy DeVos promised in a statement that the OCR “remains committed to investigating all claims of discrimination, bullying and harassment against those who are most vulnerable in our schools.”

But now, in the absence of the Obama-era guidance, the Department of Education seems to be “split[ting] the baby,” as Education Week writer Evie Blad memorably phrased it, by presenting bullying and bathrooms as issues that can be teased apart.

The memo still explicitly permits the OCR to look into “gender-based harassment” and “hostile environment[s]” under the rubric of Title IX’s ban on sex discrimination without mentioning the fact that bathrooms are, empirically speaking, one of the most hostile environments transgender students face.

In its 2015 National School Climate Survey, the LGBT anti-bullying organization GLSEN found that over 39 percent of all LGBT middle and high school students who responded to the survey—not just transgender students—avoided restrooms because they felt “unsafe” or “uncomfortable” using them.

Zooming in on transgender students specifically, that avoidance statistic skyrockets to 69.5 percent. It’s not hard to find a third data point that likely accounts for that uptick: a full 60 percent of transgender students reported that their schools required them to use the wrong restroom.

The GLSEN data proves that bathrooms and locker rooms are by far the spaces that LGBT students are most likely to avoid on school grounds, which should make them the front line of any anti-bullying efforts intended to protect them.

That’s why GLSEN executive director Eliza Byard was not pleased with the Department of Education’s new memo, calling on the OCR to “specify whether they will defend trans students’ access to safe and appropriate school facilities.”

“Forcing trans students to use restrooms that do not align with their gender identity puts those students at risk of harassment and violence,” Byard’s statement continued.

Even more troubling is a 2016 study in the Journal of Homosexuality which analyzed data from the National Transgender Discrimination Survey and found that “denial of access to either [bathrooms or campus housing] had a significant relationship to suicidality, even after controlling for interpersonal victimization.”

In other words, even if you could separate the bathroom issue from bullying—as this 2016 study attempted to do in its statistical analysis—keeping transgender students out of the right restrooms might still negatively impact their mental health.

Indeed, the American Medical Association recently announced formal opposition to policies that restrict transgender restroom access on similar grounds, with board member Dr. Jesse Ehrenfeld citing the “immediate and lingering physical consequences, as well as severe mental health repercussions” that such restrictions can cause.

For example, data from the U.S. Trans Survey has shown that transgender people often limit eating and drinking to prevent restroom use, and sometimes develop kidney problems as a result of avoiding urination.

The largest association of pediatricians in the country has also opposed laws like North Carolina’s HB2, which restricted restroom use in public schools by birth certificate.

In a statement at the time, AAP CEO Karen Remley summarized the message that such restrictions send to transgender students: “You’re different, something is wrong with you, you need to change in order to fit in here.”

Bathrooms are not just functional spaces but social ones as well, and sending a transgender student into the wrong one is not a neutral act. As Remley noted, keeping transgender students out of restrooms matching their gender only “exacerbate[s]” the “heightened risk” of “bullying and harassment” that they already face, effectively putting them in “hostile environments.”

It’s an unintentional twist of the knife that the phrase “hostile environment” appears now in the Department of Education’s milquetoast new guidance, which does far from enough to let vulnerable students know whether or not they are protected.