The Office for Civil Rights has issued a guidance memo advising its lawyers to consider transgender student discrimination complaints on a case-by-case basis.
According to a memo obtained by The Washington Post, lawyers for the Office of Civil Rights are now able to dismiss complaints related to a transgender student’s rights to access school restroom and locker room facilities. According to Candice Jackson, the acting head of the civil right’s office, she issued the memo to make it clear that transgender students may still have valid discrimination complaints despite the Trump administration’s withdrawal of guidance stating that transgender students had the right to use the restroom and locker room facilities that match their gender identity under federal law.
“It was very important to the Secretary (Betsy DeVos) that our investigators not make the mistake of assuming that just because this particular guidance has been rescinded that all complaints by transgender students are going to be dismissed by the OCR,” Jackson said in a statement. “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.”
Civil Rights leaders are calling the memo an attempt by the Trump administration to whittle away at civil rights enforcement. One of the most vocal is Catherine Lhamon, who was the head of the Office for Civil Rights under President Obama and now chairs the U.S. Commission on Civil Rights. “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 Lhamon. “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.” Lhamon was one of the writers of the Obama administrations Title IX guidance that protected a transgender students right to use the bathroom that matched their gender identity. The guidance was held up in court by U.S. District Judge Reed O’Connor and rescinded by the Trump administration in February.
The memo also states that transgender students still have protections from “discrimination, bullying, and harassment” based on other federal regulations and guidance. The agency is still able to investigate a school’s refusal to use a student’s preferred name and pronouns. They are also able to investigate allegations of retaliation against transgender students who raise concerns over sex discrimination and schools that fail to address hostile environments created by gender-based harassment or sex stereotyping.
Education Secretary Betsy DeVos has stated in hearings that she is “invested in fully funding” the Office of Civil Rights, however President Trump’s budget proposal cuts almost $2 million from the office. According to the LA Times, sources say that Candice Jackson has told her staffers that they should be prepared to “do less with less.”