In a development that is as mean-spirited as it was inevitable, Trump’s U.S. Department of Education (DOE) is refusing to address civil rights complaints from transgender students.
Of course, the Trump administration has made a general practice of undermining the mission of administrative agencies in a number of ways. Amidst all these broad attacks, transgender individuals have been particularly subject to targeted discrimination. There was the casually announced ban on transgender individuals serving in the military. There was the U.S. Department of Justice (DOJ) announcement that it would no longer view Title VII, which prohibits discrimination on the basis of sex, as protecting transgender workers. And there is the ongoing assault on the rights of some of the most vulnerable: young transgender people. This latest maneuver from the DOE is, unfortunately, more of the same.
In February of last year, not long after Trump took office, the DOJ undid guidance, jointly issued by the DOJ and the DOE under Obama. That guidance informed schools that pursuant to Title IX—which prohibits discrimination on the basis of sex in educational settings—transgender students had the right to use bathrooms that were consistent with their gender identity. In other words, the Obama-era DOJ and DOE read Title IX to explicitly protect transgender students from discrimination, and the agencies under the Trump administration refuse to read Title IX to provide that protection.
Then, in June 2017, without any adequate explanation, the DOE’s Office of Civil Rights (OCR) closed a case—and withdrew its own earlier findings—that a transgender girl in Ohio had been discriminated against when she was prohibited from using the bathroom that conformed with her gender identity. Now, OCR is taking the stance that it is simply not the agency that can or will investigate complaints from transgender students. And that lack of commitment is obvious: OCR’s entire list of resources for LGBTQ students now consists of old information from the Obama era and a copy of the letter withdrawing Title IX protections for trans students.
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HuffPost located three OCR decisions where OCR stated it did not have jurisdiction over complaints from transgender students. The OCR complaint database is notoriously difficult to search and sometimes out of date, so it isn’t easy to spot these terrible trends early on, and OCR has not highlighted this new practice. In one of the letters, OCR refused to investigate the complaint and stated “the alleged discriminatory conduct you described does not raise any prohibitive bases under the civil rights laws OCR enforces.”
OCR has investigated discrimination against transgender students for several years. So how can it declare that it can’t continue doing so? It all goes back to that letter withdrawing Title IX protections. If Title IX doesn’t apply to transgender students, the logic goes, then OCR can’t investigate those complaints, because the only authority that OCR possesses in this arena is to investigate violations of Title IX. It’s a perfect storm of viciousness that leaves transgender students with very little recourse.
Of course, the stance of the Trump administration is that students have a remedy: They can go to court and sue under Title IX. In fact, when withdrawing the findings in the Ohio case above, though the withdrawal letter itself indicated no reason for the action, the acting head of OCR, Candice Jackson, said the case was closed because the student also filed a case against the district. OCR does indeed dismiss complaints if it determines the exact same allegations have been filed in a court case, but this is a situation where OCR already investigated the complaint and issued findings, but then withdrew them.
Students do have the potential to prevail in court, as several have already ruled that Title IX does cover transgender students. The problem with individual lawsuits as a remedy is, of course, that they cost money—a good deal of money. Students have to have the resources to figure out how to obtain competent counsel and to pay for that counsel.
If students pursue a court case, they may also have to wait for years while the litigation drags on. For transgender high school students that are fighting for their rights to use the right bathroom or join the proper sports team, the litigation can extend well past the time when those goals would be reasonable because the student will graduate during the lawsuit.
On the other hand, filing a complaint with OCR is free, and OCR bears the costs of investigation. OCR also has a number of tools at its disposal that courts don’t. OCR can negotiate voluntary resolutions, where the school district agrees to resolve the complaint. It can then monitor that resolution, which courts can’t do. The office also has the ability to suspend, terminate, or refuse to provide new federal financial aid to a school district. A court can’t do that either.
In short, OCR’s refusal to address complaints from transgender students drastically increases the costs students face in addressing discrimination and drastically decreases the enforcement mechanisms that can be used when a school district doesn’t comply.
OCR’s stance is in keeping with the Trump administration’s general view of administrative authority: that it should be undercut at every turn. When you remove the ability of agencies to issue regulatory guidance and investigate complaints, you remove the ability of agencies to provide meaningful assistance and change on a large scale. Instead, people who have been wronged are forced to bear all the costs of their own litigation and victories are limited, piecemeal, to individuals rather than using the power of an agency to exert sweeping change. It also means that those victories may be limited to just one state or one appellate circuit, whereas OCR has the power to shape policy for the whole country. OCR may be the only office engaging in this practice right now, but it certainly won’t be the only office or agency that will refuse to use its power to help people in the future.