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Clarity or Confusion?

OCR issues new guidance that clear way for investigating some cases of transgender bias, but advocates for transgender students say the document is inadequate.

June 19, 2017
 

A memo from the Department of Education on handling of transgender civil rights complaints instructs officials to continue investigating those complaints as they would have before 2016 guidance issued by the Obama administration.

The Obama administration's guidance said that anti-transgender bias was covered by laws against gender bias, and thus opened the way for investigations into such discrimination. Prior to that guidance, some cases involving transgender students were investigated as gender discrimination, but advocates for transgender students said some of their cases needed to be defined as anti-transgender bias.

Education Secretary Betsy DeVos, in one of her earliest actions at the department, withdrew that 2016 guidance, creating fears among some that the department would not strongly enforce civil rights protections for transgender students. In a June 6 letter to regional civil rights officials obtained by The Washington Post and the Los Angeles Times, Acting Assistant Secretary for Civil Rights Candice Jackson said the withdrawal of that guidance and recent court developments do not leave students without protections.

"Rather, OCR should rely on Title IX and its implementing regulations, as interpreted in decisions of federal courts and OCR guidance documents that remain in effect, in evaluating complaints of sex discrimination against individuals, whether or not the individual is transgender," Jackson wrote.

But advocates said the significance of the document was unclear and they feared that it could create even more confusion for civil rights enforcement. Sejal Singh, campaigns and communications manager at the Center for American Progress's LGBT Research and Communications Project, said the whole point of guidance from the Office for Civil Rights is to clarify unclear law. The document notably does not mention access to bathrooms matching a student's gender identity as among the types of complaints officials should investigate, she said. That issue has been a key one at some colleges and in state legislation.

"It is definitely creating ambiguity that leaves actors space to create discriminatory actions," Singh said.

Mara Keisling, executive director of the National Center for Transgender Equality, said the department is hinting that they will not enforce the law.

Department spokeswoman Liz Hill said after DeVos rescinded the 2016 guidance on transgender discrimination complaints in February, some cases filed by or on behalf of transgender students have been limbo. The letter from Jackson was issued to make sure investigators don't make the mistake of assuming that because the guidance had been rescinded all complaints by transgender students are going to be dismissed, she said.

"We wanted to very carefully explain in written format to our field that every investigator assigned to one of these cases should individually examine every complaint and actively search for ways that OCR can retain jurisdiction over the complaint and solve the problems and challenges that these kids are facing in their schools by applying guidance and law that still exists in OCR," Hill said.

The instructions to regional officials were reported the same day the U.S. Commission on Civil Rights voted to undertake a two-year review of the Trump administration's handling of civil rights issues. The commission is chaired by Catherine Lhamon, who served as assistant secretary for civil rights at the Department of Education under President Obama. Commissioners approved by a 6-to-2 vote a statement expressing "grave concerns" about signals from the Trump administration's approach to civil rights, calling out the Department of Education and DeVos in particular.

The statement cited cuts to civil rights staffing in the department's proposed 2018 budget as well as what it called the secretary's repeated refusal "in congressional testimony and other public statements to commit that the department would enforce federal civil rights laws."

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