The new DoE transgender guideline and the resulting confusion

When the Trump Administration's Department of Education and Department of Justice jointly revoked the Obama administration's guideline on the protection and treatment of transgender students in the country's schools, Betsy DeVos said that transgender students would still have civil rights protections and that the DoE would be releasing an update on how that would be implemented.

The document has now been made public and is dated June 6.

The letter, written by acting assistant secretary for civil rights Candice Jackson, said officers should use court decisions and these guidelines in assessing gender discrimination, whether or not students identify as transgender. Advocates have major questions about what the guidelines mean in practice.

The memo lists specific instances where officers could have specific jurisdiction, such as failure to use a student's preferred pronoun or a school or district's failure to fix an environment that is hostile toward transgender students. Investigations into transgender students being denied the right to use the bathrooms of their choice is not on that list — and the memo states that based on jurisdiction, some complaints might go forward while others, involving bathrooms, might be dismissed.

It was very important to the Secretary that our investigators not make the mistake of assuming that just because this particular guidance has been rescinded that all complaints by transgender students are going to be dismissed by OCR. Investigators should individually examine every complaint.


Catherine Lhamon, who wrote Obama’s transgender rules, says the new letter is “dangerous” for transgender students because it provides language for officers to dismiss cases before they even investigate them.

It says you have jurisdiction over sex discrimination and sex stereotyping, but here’s how you could dismiss it. They can’t have it both ways.


Former OCR deputy assistant secretary Dianne Piche said the letter is confusing.

If the regional offices no longer need to check in with headquarters, and are given the OK to process cases as they see fit, we will easily end up with inconsistent outcomes among similar cases across the country.


Similarly, Eliza Byard, executive director of the LGBT group GLSEN, criticized the letter for lacking clarity. She called on OCR "to specify whether they will defend trans students' access to safe and appropriate school facilities – regardless of where the student lives or what local protections may or may not exist."




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Robyn's picture

Inside Higher Ed::

It is definitely creating ambiguity that leaves actors space to create discriminatory actions.

--Sejal Singh, Center for American Progress

Mara Keisling, executive director of the National Center for Transgender Equality, said the department is hinting that they will not enforce the law.

We wanted to very carefully explain in written format to our field that every investigator assigned to one of these cases should individually examine every complaint and actively search for ways that OCR can retain jurisdiction over the complaint and solve the problems and challenges that these kids are facing in their schools by applying guidance and law that still exists in OCR.

--Liz Hill, DoE

Perhaps, Ms. Hill, we might agree that the such a result was not achieved.

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Robyn's picture

I tried to post a diary this morning but was blocked.  ??

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