NYS officials counter DeVos on transgender bathroom issue |
On Board Online • March 12, 2018
By Eric D. Randall
Editor-in-Chief
New York State officials and the Trump administration remain divided regarding whether transgender students are protected by federal civil rights law.
On Feb. 12, the U.S. Department of Education confirmed a report by BuzzFeed that it no longer will investigate allegations that schools have violated the civil rights of transgender students by denying them access to bathrooms that match their gender identity.
While the Obama administration considered transgender students to be protected under Title IX, the Trump administration characterizes that as something the executive branch cannot determine independently.
"Title IX prohibits discrimination on the basis of sex, not gender identity," Education Department spokeswoman Elizabeth Hill told CNN.
"The secretary would contend that it is the job of Congress or the courts, not the bureaucracy, to determine whether or not the term 'sex' under Title IX encompasses 'gender identity,'" Hill said, referring to Education Secretary Betsy DeVos.
New York State Education Commissioner MaryEllen Elia condemned the federal approach. "It is appalling to see the federal government refuse to investigate these important civil rights complaints from transgender youth, who are valued members of our schools and communities across New York State," she said. "No child should endure harassment or discrimination, and we must create learning environments that are safe and welcoming for all."
Elia and Attorney General Eric Schneiderman sent a letter to school districts on Feb. 28 to remind them that the state Dignity for All Students Act prohibits discrimination on the basis of gender, which includes "a person's gender identity or expression."
And districts still can be sued for discrimination on the basis of gender identity under federal laws including Title IX, the letter noted. Some courts have found violations in bathroom access cases, and others haven't, depending on their interpretation of Title IX and case facts.
In January, the Kenosha Unified school board in Wisconsin paid $800,000 to settle a lawsuit filed by Ash Whitaker, a transgender former student who said school administrators proposed making him wear green wristbands so staff could recognize him and monitor which restroom he used.
A federal district court had issued an injunction allowing Whitaker to use male-only restrooms at his high school, which was upheld by a federal circuit court.