Trump administration sticks it to transgender kids one last time

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Former Secretary of Education Betsy DeVos leaves behind a legacy of attacks on LGBTQ equality.

Betsy DeVos, who served as secretary of education for nearly the entirety of the Trump administration, submitted her resignation on Thursday, Jan. 7, citing as her reason the violent attack on the U.S. Capitol by supporters of Donald Trump and his rhetoric helping to incite it.

The Department of Education added to her legacy of attacks on transgender equality in U.S. schools on Friday, the day her resignation took effect, releasing an internal memo that said the definition of sex-based discrimination in Title IX, which bars such discrimination in educational institutions that receive federal funding, does not apply to transgender people.

The policy was reflective of much of the education department's transphobic agenda during DeVos' time as education secretary.

Reed Rubinstein, the Department of Education's principal deputy general counsel, sent a memo to the department's acting assistant secretary for civil rights, Kimberley Richey, saying that "the Department's longstanding construction of the term 'sex' in Title IX to mean biological sex, male or female, is the only construction consistent with the ordinary public meaning of 'sex' at the time of Title IX’s enactment. ... Consequently, based on controlling authorities, we must give effect to the ordinary public meaning at the time of enactment and construe the term 'sex' in Title IX to mean biological sex, male or female. Congress has the authority to rewrite Title IX and redefine its terms at any time. To date, however, Congress has chosen not to do so."

Although two federal appeals courts disagreed with the department's contention that Title IX doesn't protect transgender students, Rubinstein said it remains "unpersuaded" by their rulings.

The memo shows that in the final weeks of the Trump administration, the agency continues to reject the Supreme Court's ruling in Bostock v. Clayton County that LGBTQ people are protected under Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination. Although Bostock concerned workers, experts on its protections say that the decision could have broader ramifications, including for education policy.

Title IX's language is "closely modeled" on Title VII's language and "courts regularly look to case law around Title VII for how to define the scope of sex discrimination" under Title IX, said Sharita Gruberg, senior director of the LGBTQ Research and Communications Project at the Center for American Progress.

In August, the Education Department's Office for Civil Rights published two letters signed by Richey that acknowledged the Bostock ruling would affect how the department responded to complaints. The department said that it would investigate a complaint about discrimination based on sexual orientation, but that schools that have policies that are inclusive of transgender students are breaking the law.

Last year, the agency also welcomed an anti-LGBTQ activist, Sarah Perry, to its diversity and inclusion council and told three Connecticut school districts that they wouldn't receive federal grants if they decided to keep their sports inclusive of trans athletes.

In 2017, the department, along with the Department of Justice, rescinded Obama-era guidance on protections for transgender students in schools.

In 2018, the agency told BuzzFeed News that it wouldn't investigate complaints involving transgender students who were not allowed to use the bathroom or locker room corresponding to their gender. The department said, "Title IX prohibits discrimination on the basis of sex, not gender identity." Despite federal court rulings that advance transgender equality, the department has refused to change its position.

The Department of Education largely opposed the protection of LGBTQ students' rights in general, according to a 2019 report released by the Center for American Progress. The report stated that complaints of discrimination related to sexual orientation and gender identification were "nine times less likely to result in corrective action than they were under the Obama administration. Only 2.4 percent of LGBTQ-related complaints resulted in an agreement with the school or some other action to correct for the alleged discrimination against the student—compared with 22.4 percent under the previous administration."

DeVos has acknowledged that she knows how her department's policies can affect transgender youth. During a House Education Committee hearing in 2019, Rep. Suzanne Bonamici (D-OR), asked DeVos, "Did you know, when you rolled back the guidance, that the stress of harassment and discrimination can lead to lower attendance and grades as well as depression for transgender students?"

She said, "I do know that" and added, "But I will say again that [the Office of Civil Rights] is committed to ensuring all students have access to their education free from discrimination."

When Bonamici asked her if she knew about the high rates of attempted suicide among transgender young people, she answered, "I am aware of that data."

But DeVos' awareness of the harm done to transgender students has not led her to change her department's attacks on their rights.

The memo, which the administration of Joe Biden will be able to withdraw and replace once Biden takes office, is the latest in a series of anti-LGBTQ policies advanced by the Trump administration at the last minute.

In December, the Justice Department moved to finalize a rule allowing the department essentially to ease regulations concerning less-blatant kinds of discrimination.

On Thursday, the Department of Health and Human Services finalized a regulation that removed protections against discrimination by organizations that receive federal grants.

In its final weeks, the administration has reversed Obama-era measures that prohibit discrimination against some LGBTQ workers and against discrimination in social services receiving federal funding. It also instituted new rules that make it harder for people to receive asylum in the United States.

Published with permission of The American Independent Foundation.