Over two years ago the Obama Administration’s U.S. Department of Education (USED) issued radical “guidance” instructing public schools to open up all restrooms, locker rooms, and probably sports teams to students of both sexes. That guidance was rescinded by Trump’s USED in February. Supposedly to clarify how USED’s Office for Civil Rights (OCR) should now handle Title IX complaints filed by students suffering from gender dysphoria (“transgender” students), Acting Assistant Secretary for Civil Rights Candice Jackson recently sent a letter to all Office for Civil Rights (OCR) regional directors. Jackson’s letter is a bit hazy and also a bit concerning.
Title IX prohibits discrimination in federally funded education programs “on the basis of sex.” It says nothing about gender identity, and no serious person argues that Congress intended any such reading when the amendment was enacted in 1972. Nevertheless, plaintiffs have had some success persuading activist judges to extend Title IX’s protections to complaints based on gender identity rather than sex. But the law in this area is unsettled: A federal court in Texas blocked implementation of Obama’s guidance, and after Trump’s USED withdrew that guidance, the Supreme Court vacated a case in which a female student in Virginia sought to use the boys’ restroom at school.
Jackson’s letter makes clear that transgender students can still file civil-rights complaints, which OCR will evaluate in reliance on “Title IX and its implementing regulations, as interpreted in decisions of federal courts and OCR guidance documents that remain in effect.” That apparently means that as the law “evolves” (translation: is rewritten by judges despite Congress’s refusal to do so), OCR’s handling of transgender complaints may change as well.
For now, Jackson’s letter has emphasized that district offices should “approach each of these cases with great care and individualized attention before reaching a dismissal conclusion.” The letter lists several types of allegations over which OCR may assert jurisdiction, including failure to reasonably address sexual or gender-based harassment that creates a hostile environment, retaliating against a transgender student for raising a complaint, and treating students differently based on sex stereotyping.
The paragraph receiving the most attention from conservatives is the one listing various types of sexual harassment that might currently justify an OCR investigation. That list includes “hostility based on sex or sex-stereotyping, such as refusing to use a transgender student’s preferred name or pronouns when the school uses preferred names for gender-conforming students or when the refusal is motivated by animus toward people who do not conform to sex stereotypes . . . .”
Hmm. Title IX doesn’t require anyone to use any particular pronouns, and a person punished in a public school for failing to utter particular words might want to carry a copy of the First Amendment in his pocket for easy access. So it’s troubling that OCR mentions this type of “harassment.” Maybe the sentence means, as has been suggested, that the potential civil-rights violation would be a school’s failure to adhere to a pronoun policy if it has one, but the wording doesn’t really say that, and Title IX shouldn’t be implicated in that, either. And how to determine if a person’s insistence on using correct pronouns is “motivated by animus”? To a liberal, every disagreement is motivated by animus.
Some observers on the left are outraged about the letter’s omission of restroom/locker room access, except to mention it as perhaps not justifying assertion of jurisdiction. But the regulations under Title IX specifically allow “separate toilet, locker room, and shower facilities on the basis of sex” as long as the facilities provided are comparable for each sex. The Texas court concluded that this phrase unambiguously refers to biological sex. It’s encouraging that USED now has some employees who can read a regulation.
Also encouraging is that Trump’s OCR has closed a couple of cases involving transgender facility access. These decisions have caused leftist apoplexy, prompting one former Obama bureaucrat to accuse OCR of “renegade law.” This phrase apparently was used without irony.
Others on the left, including one anonymous OCR official, have said that because the letter is so broadly written, they expect “business as usual” (meaning continuation of Obama policy) on transgender issues.
So there are mixed signals coming from the Trump administration. The bottom line is that we really don’t know what the bottom line is. Parents and other citizens concerned about children and about the Constitution should applaud USED and OCR for inching toward sanity on these issues. But stay alert.
Photo credit: IIP Photo Archive via Flickr, CC BY-NC 2.0