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Trump administration’s approach to handling transgender students’ civil rights complaints is described in memo

Education Secretary Betsy DeVos testifies on Capitol Hill in Washington on June 6 before a Senate Appropriations subcommittee on the fiscal 2018 budget. (Susan Walsh/AP)

The Education Department’s Office for Civil Rights has directed its lawyers to consider transgender students’ discrimination complaints on a case-by-case basis, according to an internal memo obtained by The Washington Post, which makes clear that lawyers may decide to dismiss complaints related to the polarizing issue of transgender students’ access to school bathrooms.

Candice Jackson, acting head of the civil rights office, said she sent the memo to clarify that transgender students may still have valid discrimination complaints even though the Trump administration withdrew guidance specifying that they have a right under federal law to use school bathroom and locker room facilities corresponding to their gender identity.

“It was very important to the secretary and to myself that our investigators not make the mistake of assuming that just because that particular guidance has been rescinded, that all complaints filed by transgender students are going to be dismissed,” Jackson said in an interview Friday. “We wanted to very carefully explain in written format to our field that every investigator assigned to one of these cases needs to go through and individually examine every complaint, and actively search for ways that OCR can retain jurisdiction over the complaint.”

Some civil rights advocates immediately assailed the memo as part of an attempt by the Trump administration to whittle away at civil rights enforcement.

“This guidance says that OCR gets to pick and choose which cases it will open, and it could be appropriate to dismiss for lack of jurisdiction an allegation that a transgender student is not able to access a bathroom consistent with their gender identity,” said Catherine Lhamon, who led the Office for Civil Rights under President Barack Obama and now chairs the U.S. Commission on Civil Rights. “That is not an option under the law, and OCR does not have the option to pick and choose the cases it wants to open.”

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While working under Obama, Lhamon helped write guidance explaining to schools that Title IX, a federal law that prohibits sex discrimination, protects students’ right to use bathrooms matching their gender identity. The guidance sparked legal challenges and a national debate about transgender students’ rights. Last month, the U.S. Court of Appeals for the 7th Circuit became the first federal appellate court to affirm that Title IX affords transgender students that right. The Supreme Court has yet to rule on the issue.

The Education Department memo distributed to staff last week, dated June 6 and signed by Jackson, does not mention the 7th Circuit ruling but outlines court decisions to dismiss or vacate cases in light of the Trump administration’s decision to withdraw the Obama-era transgender guidance. It also states that the Office for Civil Rights may no longer rely on that guidance when deciding how to respond to transgender student complaints.

But transgender students still have protections against “discrimination, bullying and harassment” based on other federal guidance and regulations, the memo emphasizes, urging enforcement offers to look for any “permissible jurisdictional basis for OCR to retain and pursue the complaint.”

For example, the agency may still investigate schools’ refusal to use a student’s preferred name or pronouns and allegations of retaliation against a transgender student who raises concerns about possible sex discrimination. And it may still investigate complaints that a school has failed to address hostile environments created by gender-based harassment or sex stereotyping.

Restroom access is not among the specific issues listed as appropriate for federal investigation, and is offered as an example of a type of case that might be dismissed.

Read the Education Department’s internal memo

“It is the goal and desire of this Department that OCR approach each of these cases with great care and individualized attention before reaching a dismissal conclusion,” reads the memo. “It is permissible, for example, for one allegation in a complaint (such as harassment based on gender stereotypes) to go forward while another allegation (such as denial of access to restrooms based on gender identity) is dismissed.”

One OCR employee, who was not authorized to speak to media and spoke on condition of anonymity, said the memo was a “green light” to move forward with discrimination complaints from transgender students — including those concerning bathroom access. A student who cannot use the bathroom that matches their gender identity is almost certainly the victim of prohibited sex stereotyping or a hostile environment, the employee said. “The presumption here should be it’s business as usual, and not that OCR is abdicating its role as a protector of civil rights for transgender students.”

Anurima Bhargava, who served in the Obama administration’s Justice Department and believes transgender students have a right to use bathrooms that match their gender identity, agreed that the memo is written in a way that gives federal officials room to pursue complaints from students who are denied bathroom access. “It is saying proceed in accordance with the law, and the law is moving in the right direction,” Bhargava said.

But what happens if a transgender student’s complaint is handled by an official who does not believe bathroom access is an issue worthy of investigation? “Americans would agree your rights should not be determined on your Zip code or what person in an office happened to handle your complaint,” said Eliza Byard, executive director of GLSEN (originally the Gay, Lesbian and Straight Education Network).

“If a child cannot use the right bathroom at school, they simply cannot go to school, they cannot be a student,” said Mara Keisling, executive director of the National Center for Transgender Equality.

The directive comes amid intense scrutiny of the Education Department by advocates for civil rights, who have criticized the Trump administration for seeking to roll back enforcement efforts.

The U.S. Commission on Civil Rights on Friday voted to initiate a two-year investigation of federal civil rights enforcement, a response to what the commission said was its deep concern about the Trump administration’s proposed budget and staffing cuts to civil rights offices and efforts across multiple federal agencies, including the Education Department.

“The Commission has grave concerns about continuing signals from the current Administration, including the President’s proposed budget and statements of Cabinet and senior Administration officials, that the protection and fulfillment of civil rights of all persons will not be appropriately prioritized,” reads the statement, which commissioners approved on a 6 to 2 vote, with one Republican and one independent dissenting.

A separate Education Department memo issued last week directed civil rights enforcement officers to narrow the scope of investigations into complaints about sexual violence and discriminatory school discipline.

Under Obama, the civil rights office sought to determine whether any one student’s complaint about those issues was symptomatic of a broader problem in a school or district, in part by examining at least three years of past complaint data. The Trump administration is discontinuing that practice and will not regularly seek to identify “systemic” problems unless a complainant raises or an investigator identifies such concerns, according to Jackson’s June 8 memo, first reported by ProPublica.

Elizabeth Hill, a spokeswoman for the Education Department, said the change in approach is meant to ensure that investigations are resolved more quickly. “In OCR, processing times have skyrocketed in recent years, and the case backlog has exploded. Justice delayed is justice denied, and justice for many complainants has been denied for too long,” she said.

Some enforcement officers at the Office for Civil Rights, who have long complained about being overburdened, embraced the new flexibility. But critics of the Trump administration considered the narrowing of some investigations as another example of an effort to narrow civil rights enforcement. The president’s proposed budget would result in a loss of 46 positions from the Office of Civil Rights, a 7 percent cut.

“President Trump and his Administration can claim to oppose discrimination all they want, but actions speak louder than words — and everything they are doing is making it clear that they want to defang and weaken the federal government’s tools to protect the civil rights and safety of people across the country,” Sen. Patty Murray (D-Wash.) said in a statement Thursday.