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Memo Might Suggest Transgenders Can Choose Bathroom After All 

06-22-2017

Back in February, the Trump administration dismissed the Obama administration's public school guidelines allowing transgender students to use the bathroom or locker room of their choice. But a recent development leaves some people scratching their heads. 

A new Department of Education memo identifies certain civil rights violations against transgender students that could be worthy of investigation and discipline. The June 6th memo was issued by the Civil Rights Division of the department. It lists a number of behaviors against a transgender student the CRD considers inappropriate enough to rise to the level of warranting an investigation by the CRD. These include things such as failure to address a transgender student by the pronoun he or she wishes to be addressed by and "hostility" towards a transgender student.

Although the memo does not say schools should allow transgender students to use the bathroom or locker room of their choice, some legal experts suggest depriving a transgender student of that freedom could be considered "hostility."The memo advises Civil Rights Division staffers to evaluate the complaints filed by transgender students on a case-by-case basis based on the following infractions:

  • failure to promptly and equitably resolve a transgender student's complaint of sex discrimination 
  • failure to assess whether sexual harassment or gender-based harassment of a transgender student created a hostile environment
  • failure to take steps reasonably calculated to address sexual or gender-based harassment that creates a hostile environment
  • retaliation against a transgender student after concerns about possible sex discrimination were brought to the recipient's attention 
  • different treatment based on sex stereotyping (e.g., based on a student's failure to conform to stereotyped notions of masculinity or femininity) 

The memo was sent by Candice Jackson, acting head of the civil rights office of the Department of Education. She told the Washington Post she sent it 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. 

She said the new Department of Education Secretary Betsy DeVos doesn't want transgender students to feel unprotected against discrimination and abuse despite the fact that in February the department reversed the Obama administration directive to public schools advocating they allow transgender students to use the bathroom and locker room consistent with their perceived gender.

"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."

The Post quotes an anonymous OCR employee, who 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."

However even if a transgender bathroom complaint is filed, it's still up to OCR employees to determine whether it rises to the level of harassment, which is largely based on the employee's own views about the issue as well as the individual incident in question. 

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