On Tuesday, dozens of national LGBT advocacy organizations and attorneys sent a letter to all 50 State Departments of Education asking them to follow federal laws they say protect transgender students — regardless of how the federal Department of Education decides to interpret those laws.
“Schools that discriminate against transgender students, such as by denying them access to bathrooms and other single-sex facilities that correspond with their gender identity or failing to protect transgender students from harassment, are violating Title IX and the Constitution’s Equal Protection Clause,” reads the letter, primarily sponsored by Lambda Legal, the National Women’s Law Center, and Public Justice.
The letter tells states that ever since this February, when the Trump administration rescinded Department of Education and Department of Justice guidance protecting transgender students, some schools have been left confused over whether trans students still have the same rights.
"We are concerned that the withdrawal of the Title IX guidance might lead some schools to believe that transgender students are not entitled to access bathrooms or other single-sex facilities consistent with their gender identity, or that the law or their obligations under Title IX to protect transgender students have somehow changed. That is simply not the case," reads the letter.
When the Justice and Education departments pulled back from the transgender student guidance, they said in a court filing that more investigation was needed to determine whether such a policy was necessary.
The original Obama-era guidance issued in a 2016 “Dear Colleague” note instructed school districts to interpret Title IX to include gender identity under sex discrimination protections. According to the attorneys and advocates who signed on to Tuesday's letter, the law hasn't changed — and courts have long since decided that transgender students are protected by laws banning sex discrimination in schools.
Tuesday’s letter to states goes out just days after federal Secretary of Education Betsy DeVos wrote, in a separate letter to Sen. Patty Murray, that the federal agency overseeing student civil rights and education policy would strive to remain “fair and neutral.”
DeVos also slammed Obama-era civil rights policies as “overreaching” efforts that “punish and embarrass institutions rather than work with them to correct civil rights violations.”
Now, the clock is ticking on a new policy. With some schools starting in August, time is running out for the Department of Education to issue a firm stance on transgender student access to bathrooms and other private facilities, among other civil rights issues.
Failing to introduce a policy would leave so many school districts — and court cases — in chaos, many experts expect new guidelines any day now.
Log Cabin Republicans (LCR) — specifically, the group’s Transgender Leadership Caucus — is just one of several LGBT organizations that have been meeting with Education officials in the Office of Civil Rights to give input on transgender student rights.
“Our suggestion, when we met with them in May and June, was that the time for prescribing policy ideally is within this next month,” said Gregory T. Angelo, LCR President, citing the impending start of the 2017-2018 school year.
Angelo said he believes the Office of Civil Rights, headed by Candice Jackson, has made a good faith effort to meet with transgender advocates and understands the issues at hand.
“Given the amount of time and thoughtfulness they have given to trans issues over the last four months,” Angelo said, “I would be surprised if they did not issue a statement affirming the worth and dignity of transgender students, and furthermore let transgender students and all students know that the Department of Education is there to defend their rights.”
But for others, DeVos’ July 11th letter to Sen. Murray was an indicator of the Trump administration’s mandate to overturn all Obama-era progress for LGBT civil rights.
Sharon McGowan, a former Justice Department attorney with the Civil Rights Division who now leads strategy for Lambda Legal, said the language in DeVos’ letter was “ominous.”
“She’s using this language that suggests the Department of Education is in need of some massive correction,” said McGowan. “Having been inside the government, watching the painstaking deliberation the Department of Education went through to receive input from schools and administrators and agencies...they [DeVos and colleagues] just want to create a narrative to undermine the legitimacy of this policy.”
Tuesday's letter from the LGBT advocates to state education departments basically warns states that the federal government may no longer be motivated to protect the civil rights of transgender students — while also warning that schools will still face lawsuits if they don't comply with legal interpretations that say discrimination based on gender identity violates federal law.
“Schools are obligated to protect transgender students in compliance with the law," reads the letter, "Regardless of whether they face legal recourse from the federal government.”
GLSEN, the LGBT student rights group that also signed on to Tuesday’s letter, has attended meetings with education officials to discuss new transgender student guidance. But the organization isn’t happy with DeVos’ latest statements deriding the previous administration’s approach to civil rights.
“In her letter, Sec. DeVos implies that investigating complaints into discrimination against transgender students is inherently biased, privileging transgender students over other complainants. Nothing could be further from the truth,” said GLSEN Director of Public Policy Nathan Smith.
“One cannot be ‘neutral and impartial’ by refusing to protect transgender students from well documented and disproportionate harassment and discrimination,” Smith said. “To the contrary, any inaction on reports of such discrimination is by definition biased and partial.”