Education Department Spokesperson Liz Hill had told BuzzFeed News they will no longer investigate or take action on complaints filed by transgender students who are banned from using restrooms and locker rooms that match their gender identity in public schools.
The move marks the first time the administration has openly confirmed the new policy after a guidance memo advising the DOE’s Office of Civil Rights to handle transgender discrimination issues on a “case by case basis” was issued last June. Back in February 2017, The Department of Justice had rescinded President Obama’s 2016 guidance that said transgender students were protected under Title IX, which prohibits discrimination against students on the basis of their sex. In March 2017, the Supreme Court decided not to hear the case of Gavin Grimm v. The Gloucester County School District, a Virginia case that centered around Title IX rights for transgender students regarding restrooms, by sending it back to the lower courts.
According to the BuzzFeed report, Hill had responded “Yes, that’s what the law says” when she was asked if it was the Education Department’s position that restroom complaints from transgender students are not covered by Title IX. When pressed further, Hill responded, ‘“Title IX prohibits discrimination on the basis of sex, not gender identity.”
Hill, who was hired as spokesperson by Secretary of Education Betsy DeVos, also confirmed that transgender students would still be able to report other forms of discrimination, but not cases pertaining to restrooms. “Where students, including transgender students, are penalized or harassed for failing to conform to sex-based stereotypes, that is sex discrimination prohibited by Title IX,” Hill said. “In the case of bathrooms, however, long-standing regulations provide that separating facilities on the basis of sex is not a form of discrimination prohibited by Title IX.”
With the Education Department’s interpretation of Title IX withstanding, recent rulings such as the 7th Circuit’s Whitaker v. Kenosha Unified School District found that Ash Whitaker was in fact discriminated against by the school district when they prevented him from being able to use the restroom that had matched his gender identity. The district settled with Whitaker for $800,000 before the case had reached the Supreme Court.
Since 2016, the interpretation of Title IX with regards to transgender students has appeared to depend on which political party is in power, with the Obama administration saying transgender students are protected while the Trump administration says they are not. The matter will not ultimately be decided until such a case is actually heard by the Supreme Court.