The Trump administration has drafted policies for the Education Department and other agencies that enforce civil rights that eliminate the concept of a student being transgender, and potentially make it next to impossible for transgender students to raise complaints about treatment based on their gender identities.
The New York Times revealed the plans Sunday. Under the draft policies for use in various federal agencies, the following definition would be used: “Sex means a person’s status as male or female based on immutable biological traits identifiable by or before birth … The sex listed on a person’s birth certificate, as originally issued, shall constitute definitive proof of a person’s sex unless rebutted by reliable genetic evidence.”
While transgender covers a variety of identities, many who identify as transgender do not see themselves in the "male" or "female" designation they received at birth or in the male/female binary.
Under the Obama administration, federal agencies recognized gender identity as a protected class and considered complaints brought by transgender students. At the same time, a growing number of federal courts have also recognized transgender status (although some federal courts have not done so).
The Trump administration has criticized these developments, saying that the Obama administration exceeded its authority and should have waited for Congress to specify that various federal civil rights laws protect transgender students. Last year, the Education Department's Office for Civil Rights said it would handle complaints by transgender students the way the agency did before the Obama administration said that it would consider such complaints as covered by civil rights laws.
In some cases, officials noted bias against transgender students may be covered by federal bans on gender-based discrimination and might still be investigated. Advocates for transgender students said that this was true in some cases, but not in many others. But an investigation by Politico -- focused on cases in elementary and secondary schools -- found the department under the Trump administration throwing out many complaints by trans students and their families.
Catherine Lhamon, who served as assistant secretary for civil rights at the Department of Education under President Obama, said in an interview with Inside Higher Ed that the proposals, if enacted, would be "catastrophic to transgender students."
She noted that while some colleges have moved to protect transgender students from discrimination, others have not. Disputes have come up about admissions policies, access to bathrooms, access to residence halls, athletic participation and more.
While a student could still sue a college for bias, the Trump proposal would effectively shut down any chance that a student could turn to a government agency for help, Lhamon said. Many students don't have the money to bring a suit but can file complaints with OCR or other agencies, she said. "The federal government, speaking with its incredibly powerful voice, would effectively render transgender students as people without protection," she said.
This move could also influence the decisions of colleges on whether to be inclusive to trans students, she said. "This would essentially give a permission structure for discrimination," she said.
Lhamon also said that the move should concern anyone who values civil rights enforcement by the federal government in education. "The Trump administration is giving itself permission to narrow the law," she said, and could do so in other areas as well.
Shane Windmeyer, founder and executive director of Campus Pride, which is an advocate for gay, lesbian and transgender students, said via email that the policy being considered would be dangerous for transgender students.
"The Trump administration wants to flippantly deny even the existence of trans people and allow any college campus to discriminate outright in programs and policies," he said. "Any campus that discriminates toward a group of students should be held accountable for not providing a safe learning environment. And it must be realized, regardless of viewpoints, that an unsafe, discriminatory learning environment for any student is not an inclusive, open, safe place for learning for anyone."