Do DeVos Comments Encourage Anti-Gay Bias?

Education Secretary Betsy DeVos last month told lawmakers at a congressional hearing that states and local communities were better equipped than the federal government to deal with issues of regulation, drawing condemnations and negative headlines. In front of a Senate subcommittee last week, she had noticeably changed her tune, telling senators repeatedly that any school receiving federal funding is required to follow federal law.

That assurance came with a pretty big caveat, however. Pressed by Democrats on how she would protect the rights of LGBT students, DeVos said in areas where the law is “unsettled,” which she said included issues of bias against gay people, her department would not be “issuing decrees.”

Those comments have fueled concerns among advocates for those students that the department under DeVos will abandon its role in enforcing protections for gay and transgender students under Title IX of the Education Amendments of 1972. Meanwhile, her testimony was hailed by conservatives who accused the Obama administration of overstepping its bounds in clarifying the rights of those students.

Advocates were disturbed by DeVos’s statements partly because many view as increasingly settled that federal anti-bias rules do apply in cases of sexual orientation and gender identity. A growing number of high-level federal court cases have found those protections under federal law extend to LGBT individuals. While exemptions exist for religious institutions, the trend overall has been clear, according to many legal experts. And advocates say the department plays an essential role not just in enforcing those protections but in clarifying the rules that colleges and universities operate under.

Others say that even if the law is unclear, that doesn’t remove the obligation of the department to offer guidance and enforce the law. The language of the Title IX statute is itself vague as to whom it extends protections to, stating only that institutions shall not discriminate against someone on the basis of sex, said Jim Newberry, a lawyer who heads the higher education practice at Steptoe & Johnson. Even with an accumulating number of federal court rulings, the absence of a Supreme Court decision mean some guidance from the department is necessary. And as the enforcer of federal civil rights law, it must also spell out the rules of the road for the institutions it polices in those areas.

The Obama administration issued multiple guidance documents detailing the obligations of institutions involving transgender students in 2016 and with respect to gay and lesbian students in 2011 and 2014.

In one of her first acts as education secretary, DeVos in February rescinded the guidance on transgender protections. A month later, the Supreme Court kicked a high-profile lawsuit involving a now former Virginia high school student, G. G. v. Gloucester County School Board, back to the Fourth Circuit Court of Appeals, citing the change in the department’s position. The case was the first instance in which a federal appeals court ruled on Title IX protections applying to a transgender student, although a number of rulings had held that transgender individuals were covered under Title VII’s prohibition against discrimination on the basis of sex.

In April, the Seventh Circuit Court of Appeals ruled that Title VII protections applied to gay and lesbian employees in a case involving Ivy Tech Community College. And last month, the Seventh Circuit ruled in favor of a transgender student in Wisconsin who identifies as male and sought to use the boys’ bathroom at his high school.

Federal cases much farther in the past have also recognized the rights of gay students. A 1984 ruling from the Fifth Circuit found that public colleges and universities must recognize student groups for gay students.

DeVos hasn’t indicated whether the department will also withdraw the Obama guidance regarding discrimination on the basis of sexual orientation. And the department didn’t respond to an inquiry about plans for those guidelines. But advocates aren’t taking positive signs away from her latest appearance before lawmakers.

Harper Jean Tobin, director of policy at the National Center for Transgender Equality, said the testimony suggested the Department of Education may be abdicating its responsibility to enforce the law protecting LGBT students.

“Ever since the secretary’s last trip to the Hill, the education and civil rights communities have been eager for her to clarify that she believes all schools that accept federal funds must follow federal law,” she said. “Now that we finally have that clarification from her, it’s apparent that we should put an asterisk next to it.”

Tobin said federal courts have made clear rulings that federal law prohibits discrimination and harassment based on sexual orientation and gender identity. But she said it’s precisely in those areas where the law is unclear that institutions need clarification from the department in plain English and students need assurance that there is a backstop for their rights. In the absence of clear policies, there have been cases where gay and transgender students say their rights have been violated.

Guidelines themselves won’t be worth much if the department is not also an effective enforcer of Title IX violations, said Sejal Singh, campaigns and communications manager for the LGBT Research and Communications Project at the Center for American Progress.

“Even if more and more courts rightly recognize that colleges can’t expel students for being LGBT and schools can’t disproportionately discipline LGBT students, that’s not going to mean anything if the Department of Education isn’t taking action to make sure schools are compliant with the law,” she said.

Sarah Warbelow, legal director for the Human Rights Campaign, said the Trump administration’s actions and comments so far could encourage administrators at schools and universities to turn a blind eye to discrimination.

“This could be a wink and a nod to schools across the country that the Department of Education does not actually intend to fully enforce federal law,” she said.

Some institutions may feel empowered to adopt policies that undermine protections for LGBT students, Warbelow said. That could mean requiring transgender students to use bathrooms not conforming with their identity or supporting faculty who refuse to use a student’s correct name or misgender them, she said.

The Human Rights Campaign played a large role in pushing the Obama administration to begin publicly releasing a list of colleges and universities that seek religious exemptions to Title IX protections. DeVos in her Senate testimony today suggested that she was open to discontinuing that practice, another worrying sign for the organization.

More significantly for its critics, the department under Obama issued guidance on Title IX in the form of Dear Colleague letters or other nonbinding documents at a faster clip than just about any administration that came before. In addition to issues of discrimination based on sexual orientation or gender identity, those guidelines also dealt with the treatment of victims of sexual misconduct. The department’s activity was partly a function of the increased public attention on those issues over the last decade. The Office for Civil Rights as well saw an exponential increase in complaints filed against both K-12 schools and higher ed institutions.

But conservative critics argued that the administration overstepped its bounds in issuing those guidelines and effectively created new law via regulation. They also claimed it violated the rights of religious institutions, despite the large number of Title IX exemptions granted by the department.

Christen Price, an attorney who was a frequent critic of the previous administration, said Democrats’ questioning of DeVos last week was political grandstanding. Via email, she said that the real victims of discrimination under the Obama administration were religious institutions.

“We can all agree that discrimination should never be allowed, which is what Secretary DeVos was getting at. Unfortunately, we saw the federal government operate as a lead discriminator repeatedly throughout the Obama administration,” Price said. “Whether we are talking about the privacy and dignity of all students when they use intimate facilities such as shower rooms, locker rooms and restrooms or the ability of a private, religious school to operate consistent with its mission as its secular counterparts have the freedom to do, it is imperative that the voices and concerns of all students and parents be heard and balanced, and that all Americans continue to have their First Amendment-guaranteed freedom to live, work and attend a school consistent with their faith and conscience without fear of government retaliation.”

Ryan T. Anderson, a senior research fellow at the conservative Heritage Foundation, said DeVos appeared to be arguing that the role of the department is to enforce existing law, not create new law. Heritage argues that policies dealing with LGBT students should be left up to institutions themselves.

“Colleges and universities should be free to set their own policies on marriage, sexuality, gender, etc.,” Anderson said via email. “And then students, parents and teachers should be free to decide what sort of school they want to be a member of.”

Tobin of the National Center for Transgender Equality said that kind of discretion is not how civil rights laws have ever worked in the U.S.

“There are of course many different reasons that students and families take into consideration of where they go to school, but basic facts about who they are should not have to be one of them,” she said.

Attorneys who work on Title IX cases say the reality is that even with a number of federal court rulings endorsing protections for gay and transgender students, the vagueness of the statute and the absence of any ruling from the Supreme Court mean the department has a role to play in interpreting the law. That’s especially true because courts in the past have paid some deference to the agencies charged with enforcing federal statute, as demonstrated by the latest turn in the G. G. case.

“Could we benefit from clarity from the department? Absolutely. It’s still going to be relevant,” said Kimberly Lau, a partner at Warshaw Burstein LLP who frequently handles cases involving Title IX complaints. “It’s going to be relevant for these courts to look to the administering agency for Title IX. They’re going to want to see how the department interprets that statute.”

Lau, who has represented both complainants and students accused of misconduct on campuses, said the Trump administration appears so far unwilling to take an affirmative position one way or another. She said instead of guidance from the department, new legislation is necessary from Congress clearly spelling out protections.

In the absence of new federal law, Lau said the department should absolutely weigh in. But new guidelines should be drafted with an opportunity for the public to comment, she said. The Obama administration was criticized by conservatives -- and by some institutions -- for issuing guidelines without going through a public comment process.

“It will make for a better set of guidelines if you have the input of the public,” Lau said.

Despite DeVos’s insistence that her department won’t “issue decrees,” attorneys involved in higher ed law agreed that taking no position at all on the rights of students and the obligations of institutions isn’t feasible.

“The agency’s got to come up with some sort of consistent way of applying the statute,” Newberry said.