On Tuesday, the HuffPost reported that transgender students' civil rights are complaints are being dismissed by the Trump administration, with the Department of Education claiming that the issue does not fall under its jurisdiction anymore.
Back in February of 2017, the Trump administration rescinded Obama administration-initiated protections for transgender students that allowed them to use the school bathroom that corresponds with their gender identity. The Obama administration had argued that these protections were mandated by Title IX, a federal law that addresses sex discrimination.
However, the Trump administration contended last year that non-discrimination laws do not mandate these protections for transgender students and that the Obama-era mandates failed to give "due regard for the primary role of the states and local school districts in establishing educational policy.”
Now, the HuffPost is reporting that the Department of Education's Office for Civil Rights (OCR) is telling some transgender students who have filed discrimination complaints that it is not required to address these matters. The article noted that at least three transgender students have had their discrimination cases dismissed in the past few months.
The HuffPost noted that these cases represent the first time that Department of Education officials have specifically acknowledged that they are not required to handle transgender discrimination cases.
Indeed, the article shared excerpts from the OCR's written dismissals of these cases that illustrate this acknowledgement, with one such dismissal related to a transgender student's use of bathroom facilities asserting that, “OCR determined we do not have subject matter jurisdiction over Allegation 1, insomuch as the alleged discriminatory conduct you described does not raise any prohibitive bases under the civil rights laws OCR enforces."
Legal experts had already expressed concerns that the Department of Education would begin dismissing cases related to transgender discrimination in a Washington Post article back in June. At the time, the Department had closed a case and rescinded its earlier findings that a transgender student had endured discrimination while at school, saying that the case had been closed because the student had filed a legal complaint against her school district and that it would be settled in court.
However, at the time, experts worried that this case closure could be a signal that the Department of Education would not consider transgender students' complaints in the future, something which appears as though it may be coming to fruition with the three recent case dismissals. Indeed, the paper reported that Catherine Lhamon, who used to lead the Department's OCR, indicated that she worried that "the case closures show that the memo [an internal memo that was vague about how the Department should handle facility access cases] should be understood as a sign that the Trump administration does not intend to investigate bathroom-access complaints."
The HuffPost also pointed out that the recent dismissal of the aforementioned three cases does not align with recent court findings, which have concluded that transgender students' facility access rights are indeed protected by Title IX. As Nathan Smith, the director of Public Policy for the Gay, Lesbian, and Straight Education Network (GLSEN) told the outlet:
That’s [the OCR's findings] an understanding of Title IX that is inconsistent with a majority of court cases in the last several years ... I think what’s important to note is it’s not that the Obama administration came out of the blue to say Title IX now covers transgender students. There’s a wave of court cases from district and circuit courts that have upheld that understanding.
Back in May, a federal appeals court also affirmed the Obama administration's conclusion that Title IX does indeed protect transgender students' right to use the bathroom facility that corresponds with their gender identity.
Beyond the OCR's findings, the Trump administration has not commented on the dismissal of these three cases and/or whether they are indicative of how the Department of Education will handle transgender discrimination cases in the future.