Since the start of the Trump administration, trans advocates have tried to predict upcoming changes to the Department of Education (ED) Office of Civil Rights (OCR) and Title IX guidance and protections regarding trans individuals. In line with a growing culture of uncertainty regarding many Obama-era programs and regulations, the largest adversary to predicting the future of OCR has been mixed messaging and ambiguity from within the ED.
In the last five months Secretary of Education Betsy DeVos has struggled to find credible appointees to numerous senior positions, and many of the Department’s political appointments remain vacant. Just this past week a potential appointment, Claude Pressnell, president of the Tennessee Independent Colleges and Universities Association, withdrew his name from consideration for assistant secretary for postsecondary education. Many positions have been filled on a temporary basis, such as Under Secretary Jim Manning and Assistant Secretary for Civil Rights Candice Jackson, and there are rumors of senior level positions being eliminated entirely, along with upwards of 40 positions within OCR. In light of the recent announcements to begin negotiated rulemaking for the borrower protections and gainful employment regulations introduced under the Obama administration, the Department is severely under-staffed for upcoming negotiated rulemaking; additional hires are necessary for this process to run smoothly.
In addition to a lack of hires and proposed cuts, OCR has started closing trans student discrimination complaint cases, leading to additional apprehension. OCR recently dismissed a case in Ohio from 2016 where an elementary school student was wrongly restricted from using the girls’ bathroom and was subsequently harassed. The case was withdrawn as these claims of discrimination were based on the now-rescinded May 2016 Dear Colleague Letter extending Title IX sex discrimination protections to trans individuals. Similarly, the Washington Post reports that an ongoing investigation regarding a locker room use case in Palatine, IL, has been dropped as well.
The Department has emphasized that in spite of the rescission of the May 2016 Dear Colleague Letter the rights of trans students will still be protected. To that effect, Acting Assistant Secretary of OCR, Candice Jackson, released an internal memo in early June (parts I & II) to regional directors further clarifying trans student rights and the scope of complaints procedures within OCR. However, advocates read the memo and corresponding discrimination case closures as an indication that OCR intends to further limit its protective jurisdiction. While the memo outlines certain prohibitive incidents of bullying and harassment such as pronoun misuse or sex stereotyping, it fails to mention cases dealing with facilities use. Further, the broadness of language involving gender discrimination, along with a push for a “case-by-case” approach, creates room for the OCR to choose which cases fall under their jurisdiction.
There has also been some speculation about changes in guidance around data collection for investigations. The June internal memo indicated that in order to streamline the investigation process, OCR investigators will no longer be expected to obtain three years of past complaint data from an institution. ED Spokeswoman Elizabeth Hill told The Chronicle of Higher Education that the new method will eliminate “an artificial requirement to collect several years of data when many complaints can be adequately addressed much more efficiently and quickly.” While a case-by-case method may offer more discretion overall, certain cases of discrimination may not be the kind that require streamlining of efforts. The memo states that “OCR will only apply a ‘systemic’ or ‘class-action’ approach where the individual complaint allegations themselves raise systemic or class-wide issues.” This new guidance may indeed quicken the pace at which complaints are investigated, but some worry that it puts an unfair onus on the complainant to identify the pervasiveness of institutional oppression.
Further, while streamlining complaints makes sense to address the sizable backlog in the department, cutting resources does not. Diverse Issues in Higher Education compiled data to demonstrate that while the number of OCR complaints have risen by the thousands in the last few years, resulting in a large backlog of open cases, the ED 2018 Budget Request seeks drastic cuts to OCR staff, maintaining that the remaining staff will be responsible for the investigation of complaints. If the goal is to address the backlog, why not assist the department with additional resources so it can continue to address complaints in a holistic way? The release of this ambiguous guidance in tandem with the possibility for caseload cherry-picking, suggests additional restrictions to trans protections within OCR.
Advocates continue to turn to the federal courts for a more hopeful outlook on trans inclusiveness policy. At the end of May, the 7th Circuit Court of Appeals ruled in favor of Ashton Whitaker, a senior high school student in the case of Whitaker vs. Kenosha United School District, citing that Wisconsin was in violation of Title IX sex discrimination prohibitions by denying Ashton from using the restroom corresponding with his gender identity. If the case receives a similarly favorable decision from the Supreme Court, trans protections under Title IX will be enforced as existing law.
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