Department of Education sends mixed messages on transgender student protections

The Trump administration said it plans to investigate alleged discrimination against LGBTQ students following this summer’s landmark Supreme Court rulings that said sexual orientation and gender identity are protected traits under existing civil rights law — but only in certain circumstances, according to documents released by the Education Department’s Office for Civil Rights.

In updated guidance posted via a letter to various Connecticut schools, the Education Department said transgender students still can’t play on school sports teams that correspond with their gender identity and instead should be assigned to teams that correspond with their biological gender at birth.

At the same time, in a separate case, the department said it agreed to investigate claims of discrimination based on sexual orientation where a student alleged “homophobic bigot[ry]” at her school.

Sunu Chandy, the legal director at the National Women’s Law Center, said the two moves by the department are “totally at odds.”

“Do we applaud that someone won’t be discriminated against based on sexual orientation from participating in sports? Absolutely. But we cannot do that without saying this other decision that excludes transgender students, essentially, is — it’s so harmful and so offensive to us, as it would be to transgender students,” Chandy said.

The department’s shift comes shortly after the Supreme Court said that discrimination on the basis of sex, which is forbidden in the workplace under the Civil Rights Act of 1964, includes sexual orientation and gender identity. The Education Department said because the opinion was about discrimination in the workplace, it does not have authority over the Education Department’s Title IX statute — the law that prohibits sex discrimination in schools.

In one of the letters released last week, the department noted that the Supreme Court had “recognized the significant differences between workplaces and schools,” citing previous Supreme Court rulings.

“You can’t immediately just say, because the court has said no employment discrimination where sex now reaches certain aspects of sexual orientation and gender identity that leads to a particular outcome for bathrooms, locker rooms or sports teams,” said Ryan Anderson, a senior research fellow at conservative-leaning think tank Heritage Foundation.

However, in one of two letters published by the department outlining the updated policy, acting Assistant Secretary for Civil Rights Kimberly Richey said the ruling “guides OCR’s understanding that discriminating against a person based on their homosexuality or identification as transgender generally involves discrimination on the basis of their biological sex.”

An Education Department official said the new protections apply to complaints involving individuals being excluded from participation, denied the benefit of, or subjected to discrimination under an education program or activity.

It does not apply to situations where schools separate students by sex in situations like locker rooms and bathrooms, or sports teams, the official said.

Of transgender athletes, the Education Department’s Richey said in one of the documents, “If the school offers separate-sex teams, the male student-athlete who identifies as female must play on the male team, just like any other male student-athlete,” arguing that separating students for single-sex sports teams “must be based on biological sex.”

Chase Strangio, the deputy director for transgender justice at the ACLU’s LGBT and HIV Project, said the Education Department is “taking away much more than they’re giving,” with the documents released.

“From the perspective of trans students, you can’t claim to protect the community while also take the position, not only that trans people aren’t protected, but that that that states and local governments are prohibited from protecting trans people,” Strangio said, adding that the Education Department is “escalating” attacks on trans people.

“Transgender girls are girls. And we are for girls’ rights,” Chandy, of the National Women’s Law Center, said.

Enforcing Title IX when it comes to transgender students, specifically athletes, has been moving through the U.S. court system and different federal agencies for several years, according to attorney Casey Pick, senior fellow for advocacy and government affairs for the Trevor Project, the country’s largest crisis center for LGBTQ youth.

The Obama administration issued guidance on Title IX in 2016, saying transgender students could not be denied access to opportunities to participate in sports based on their gender identity, she said.

“Since then, there’s been a measure of conflicts. The Trump administration, shortly after taking office, rescinded that guidance and various cases have been percolating through the court system,” Pick told ABC News.

“These rulings not only come from the Supreme Court but from multiple federal courts all over the country. And it’s not just limited to employment,” she added.

Pick said she thinks the Supreme Court’s ruling should extend beyond the workplace and should apply to the Education Department’s Title IX policy. She disagrees with what she calls the Department of Education’s “idiosyncratic interpretation” of the landmark Supreme Court ruling.

“The Education Department now says they’re going to interpret Title IX as allowing them to investigate claims of discrimination based on a student’s sexual orientation. But if you read the letters, it appears that they are doing so rather grudgingly and trying to read the Bostock decision as narrowly as possible,” she said.

Sarah Warbelow, legal director of the Human Rights Campaign, said fighting for transgender rights under the Trump administration has been “incredibly frustrating.”

“This administration refuses to take serious long-standing case logs that protect LGBTQ people from discrimination under our federal sex discrimination laws, particularly younger people,” Warbelow said. “These rulings are not only coming from the Supreme Court, but they’re also coming from multiple federal courts all over the country. And it’s not just limited to employment.”

Going forward, Warbelow said she expects to see a long legal battle as transgender allies continue to push for education protections for transgender students.

She said the Education Department “seems to hold the idea that simply because the Supreme Court didn’t get to the issues of bathroom access, that somehow that means that trans kids are not entitled to protection in those circumstances.” She said they could have a “dangerous” impact for LGBTQ youth who are struggling with their identities and searching for positive affirmation from adults.

“You can’t sort of segregate out various areas of trans people’s lives. Trans people are who they say they are,” she said. “Trans girls are girls and trans boys are boys. You can’t treat a child as a girl in some circumstances and a boy in other circumstances when that’s not consistent with who they are. It’s really outrageous and it’s dangerous because it sets that child up for further discrimination, and potentially even violence.”