Feds want to write transgender students out of Title IX, but colleges should tread carefully
As one agency readies a narrow definition of gender under the anti-discrimination law, experts advise colleges to double down on efforts to protect transgender students.
In October, a leaked memo revealed the Trump administration is crafting a narrow definition of gender under Title IX that would be determined by sex at birth and verified through a birth certificate or genetic testing — a move that would leave the some 1.4 million Americans who are transgender without key federal civil rights protections.
Title IX, the federal anti-sex discrimination law colleges must follow if they receive federal funds, does not currently define sex. If the agency drafting the memo, the Department of Health and Human Services (HHS), is successful in implementing the definition and other agencies such as the Department of Education follow suit, transgender individuals could be excluded from protections that extend to almost every corner of college life, including admissions, housing, sports and bathroom and locker room policies.
But even if the definition is adopted, colleges and universities would not be required to loosen institutional protections for their transgender students, legal and higher education experts interviewed for this story said. In some cases, they should even consider strengthening them.
"No amount of changes in the regulation would affect the constitutional rights that students have, including transgender students," said Paul Castillo, a senior attorney and students' rights strategist at Lambda Legal. "Those institutions would be well-advised to continue promoting diversity in their campuses and adopting nondiscrimination policies."
Higher education's response
Backlash to the potential definition has been swift, with transgender students and their allies decrying the proposal and three college leaders penning a letter to urge U.S. Education Department Secretary Betsy DeVos to uphold transgender student rights.
These reactions show how the Trump administration and many within higher education are at odds. At a time when numerous colleges are trying to create more inclusive environments for transgender individuals, the definition, if picked up by the Ed Department, could roll back their rights. The conditions are favorable for the department to do so.
In early 2017, the Education and Justice departments rescinded Obama-era guidance that encouraged colleges to allow students to use sex-segregated facilities such as bathrooms, locker rooms and housing that align with their gender identity. (Implementation of the guidance was blocked by a federal judge in 2016.) The Ed Department's Office of Civil Rights has since clarified it would continue to investigate harassment and bullying of transgender students, though it would no longer hear complaints about bathroom facilities.
How potential new guidance could further change protocols for Title IX investigations in higher education remains unclear, though some observers have said it could eliminate the possibility transgender students could turn to the federal government with their complaints.
"The federal government isn't trying to be helpful and isn't trying to protect trans people," said Shige Sakurai, the associate director and director of leadership initiatives at the University of Maryland's LGBT Equity Center. "When people aren't protected through administrative processes, they have to go through the courts."
Where the courts stand
LGBTQ advocates have vowed to sue if the Trump administration goes through with the draft. And the courts are likely to be in their favor, legal experts said, because the overwhelming majority of cases over the past two decades have set a strong precedent that sex discrimination laws, including Title IX, apply to bias against transgender people.
"What HHS is doing is completely disregarding established medical and legal views," said Shiwali Patel, senior counsel at the National Women's Law Center. "It's not something that would survive a legal challenge."
Some universities that have forgone protective policies have faced legal, financial and reputation ramifications. In 2017, a federal jury ordered Southeastern Oklahoma State University to pay $1.1 million to a transgender professor for discriminating against her. And in 2016, the University of North Carolina was named in a lawsuit that challenged a since-repealed state law that required transgender people to use bathrooms that matched their sex at birth.
However, a few recent rulings have been outliers, the National Center for Transgender Equality notes on its website. In 2016, a federal judge in Texas handed down a preliminary, nationwide injunction to the implementation of the Obama guidance, dealing it a major blow. He ruled the administration didn't properly give notice and take comments, and that use of the term "sex" was not ambiguous and meant "the biological and anatomical differences between male and female students as determined at their birth." The ruling meant Title IX would not explicitly prohibit discrimination based on gender identity or transgender status.
"No amount of changes in the regulation would affect the constitutional rights that students have, including transgender students. Those institutions would be well-advised to continue promoting diversity in their campuses and adopting nondiscrimination policies."
Senior attorney and students' rights strategist, Lambda Legal
Shortly after taking office, the Trump administration announced it would stop fighting the injunction, and subsequent efforts to roll back protections for transgender people across the board have given LGBTQ advocates little hope the Justice Department, which must approve the new definition, would reject the version from the HHS draft.
For example, in an October 2017 memo, former Attorney General Jeff Sessions wrote that Title VII, the civil rights law that prohibits job discrimination on the basis of sex, "does not encompass discrimination based on gender identity, per se, including transgender status." His replacement, Matthew Whitaker, previously said that prospective Supreme Court nominees would "be a good judge" if they are "people of faith" and "have a biblical view of justice." He also chaired a campaign for a politician who has publicly made homophobic remarks.
Meanwhile, several cases involving transgender individuals' use of sex-segregated facilities will likely continue to work their way through the judicial system. The issue could eventually land at the steps of the U.S. Supreme Court, experts said.
Two pathways: rulemaking or guidance
Before the definition could be implemented, HHS would either need to issue guidance on the matter or go through the rulemaking process to insert it into various regulations, explained Darren Gibson, co-chair of law firm Littler Mendelson's Higher Education Industry Group.
If HHS went the first route — issuing guidance — the definition would not come as a formal regulation but rather as a guidance document offering a template for how federal agencies should interpret the relationship between a person's sex and their gender identity as well as how they handle gender discrimination complaints.
Guidance does not override any state or local laws, and at least 18 states and the District of Columbia in addition to 200 or more cities afford some level of protection to transgender individuals, according to the American Civil Liberties Union.
However, guidance could open the door for some public and private colleges in places that don't have such civil rights protections to discriminate against transgender students. It could also cause those colleges to face legal action for the protections that they do offer. And it could impact how courts respond to gender discrimination complaints involving transgender students.
"Colleges and universities could choose, if the Trump administration put out such guidance and it was not in conflict with any statement by a court of applicable jurisdiction ... to take the position that gender identity … [is] not protected under the university's policies prohibiting sex discrimination, sexual harassment and things like that," Gibson said.
If the Trump administration instead opts to go through the rulemaking process to include the definition in regulations, such as the Ed Department's forthcoming sexual misconduct rules, it could be more likely to make it through the courts, The Times reported.
"Whether it actually makes it into the regulation remains to be seen, and we're sounding the alarm to ensure that it doesn't," said Castillo of Lambda Legal.
What can colleges do?
More than 1,000 universities and colleges have anti-discrimination policies that include gender identity and expression, according to Campus Pride, and many offer support services to transgender students in an effort to create a more inclusive environment.
For example, the University of Maryland's nondiscrimination policy states that students can use facilities and participate in programs and activities that correspond with their gender identity. It also provides a way for students to have chosen names and gender markers in their records, and includes transition services in its health insurance plan, Sakurai said.
"Campuses need to remember that what the law is is just the floor," Sakurai said. "You can have laws that protect more categories or procedures that are stronger or better than whatever the Education Department might recommend for Title IX compliance."
However, some K-12 schools have seen pushback and even protests to such policies, with those against transgender students having access to facilities that correspond with their gender identity rather than their sex at birth arguing it's a violation of privacy. However, legal experts said in conversations with Education Dive that there would likely be no legal basis to back that claim.
The University of Massachusetts Amherst has undertaken similar measures on its campus, such as converting existing single-user bathrooms into gender-inclusive facilities and incorporating them into new buildings, said Genny Beemyn, the university's Stonewall Center director. And at Indiana University Bloomington, transgender students can have their preferred name reflected in campus databases and fill hormone therapy prescriptions at the university's health center.
"Campuses need to remember that what the law is is just the floor. You can have laws that protect more categories or procedures that are stronger or better than whatever the Education Department might recommend for Title IX compliance."
Associate director and director of leadership initiatives, University of Maryland's LGBT Equity Center.
Although costs to implement these measures can often be perceived as a barrier to having trans-inclusive policies or facilities, many changes can be relatively inexpensive, Beemyn said. Some can be as simple as changing the signage outside existing bathrooms.
Supports for transgender students also prevent the "hidden costs of discrimination," U of Maryland's Sakurai said. For example, transgender students who don't have access to transition services may be at risk of anxiety or depression that could make it difficult to focus on their studies.
And transgender students already face added roadblocks to completing college. According to one recent survey by The Williams Institute at the University of California, Los Angeles, 24% of respondents who were out as or perceived as transgender during college reported being harassed verbally, physically or sexually, and 16% of those experiencing harassment reported leaving college as a result.
"Given what's happening nationally, a lot of trans students feel very disheartened, feel very disempowered [and] very traumatized," Beemyn said. "Make it clear to students that we see you, we care about you, we are here for you and we are going to protect you."
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