During the Obama era, the Office for Civil Rights (OCR) released a number of Dear Colleague Letters (DCL) to provide standardized regulations and recommendations for institutions and schools. With this, the OCR released Title IX guidance April 2015 and 2016 DCL that specifically covered protections for transgender students. These rights included:
Extending Title IX protections to TGNC students, prohibiting discrimination on the basis of gender identity and;
Access to public bathrooms and locker rooms and the ability to join athletic programs that aligns with a student’s gender identity, rather than based on their sex or gender assigned at birth.
However, recently Trump’s administration rescinded this guidance undermining interpretations of Title IX which covered a TGNC students’ right to access restrooms aligning with their gender identity. However, revoking the 2016 DCL guidance did not leave transgender and gender non conforming “students [completely unprotected] from discrimination, bullying, or harassment.”
Since its withdrawal, the OCR has been evaluating complaints of sex discrimination based on decisions made by federal courts, its recent internal memo released June 6, 2017, and current OCR guidance in effect. Previous cases had been left undetermined which further exhibits the necessity of the OCR to provide guidance that would extend students’ civil rights, not dismiss them.
The guidelines within the internal memo to regional directors at the OCR lists specific instances where officers could have “subject matter jurisdiction” meaning that each regional office could have different evaluation procedures for particular cases, including those involving transgender and gender non conforming students. Some of the examples listed in the memo included:
Failure to promptly and equitably resolve a transgender student’s complaint of sex discrimination
Failure to assess whether refusal to use a student’s chosen pronouns or name creates a hostile environment
Failure to take reasonable steps towards addressing sexual and gender based harassment that creates a hostile environment
Retaliation against transgender students who bring forth complaints
School’s or district’s failure to remedy a hostile environment towards transgender students
Different treatment based on a student’s failure to conform to stereotyped notions of masculinity or femininity
Furthermore, the memo explains that OCR officials should be evaluating complaints of sex discrimination whether or not the complainant is transgender. Due to the vagueness of this guidance issued by the OCR, different offices would have varying evaluation procedures for complaints. Although the ED declared that OCR officials were to continue to initiate investigations of sex discrimination by transgender students, the memo fails to include protections for trans students seeking to use restroom facilities aligning with their identity.
Title VI is another federal law that is enforced by the Office for Civil Rights (OCR) which prohibits discrimination based on race, color, and/or national origin in education. All students of color, including LGBTQ students of color, are protected from discriminatory acts that may significantly inhibit them from receiving equal access to education.
Although Title VI does not cover discrimination based on gender identity, many TGNC students of color are discriminated against on the basis of race as well. Therefore, there is a possibility that for TGNC students of color to file a Title VI complaint if a college or school district does not reasonably protect its students from violence and discrimination. Additionally, under Title VI and the January and October 2014 Dear Colleague Letters, bullying, harassment, and discrimination based on a student’s actual or perceived color, nationality, heritage/culture (ie. Jewish or Muslim cultures), and race is prohibited in education.
For many college students, school is not just a place where they learn, they live, and work on campus as well. Title VII of the Civil Rights Act of 1964 is a federal law that prohibits discrimination in employment which also covers students employed by schools, including programs such as work study. Under Title VII it an unlawful employment practice to discriminate against people in employment on the basis of race, color, religion, sex, or national origin. Although the OCR does not enforce Title VII, it can be used collectively with Title IX, as the latter also prohibits sex discrimination, including sexual harassment, in the workplace. Additionally, with the high prevalence rate of violence and discrimination against TGNC people in the workforce, at times Title VII has been used to protect trans and gender non conforming people in employment.
Although historically Title VII has not consistently protected marginalized US workers, past interpretations of Title VII and case law -- previous court rulings -- had ensured that protections were extended to transgender and gender non conforming people as well. However, recent actions taken by the Department of Justice (DOJ) has left many puzzled as the future of Title VII protections remains unknown and whether courts will reconsider past decisions. Recently, the DOJ has issued a brief about employment discrimination reversing the 2014 memo the DOJ had distributed asserting that Title VII protected transgender employees from discrimination -- not making a definitive statement on LGBQ rights at the time. The July 2017 brief is inconsistent with at least 15 years worth of case law affirming LGBTQ protections in employment. Although this brief is restricted to Title VII, the DOJ signaling massive rollbacks of transgender and gender non conforming people’s civil rights in education and employment could have serious implications for other federal laws prohibiting sex discrimination and ultimately further marginalizes a vulnerable population.
For more information on TGNC people’s rights, please visit here. *A recent update to Title VII has been an extension of the previous memo— full repeal of the previous 2014 ruling from the Department of Justice which revokes transgender and gender non conforming people's protections under Title VII. For more information on the status of Title VII, please visit.