The Department of Education's Office of Civil Rights has issued an internal memo explaining that refusal by public schools or teachers to refer to a transgender student by his or her preferred pronoun or name could be grounds for an investigation.
It was reported Friday that the acting assistant secretary for civil rights, Candice Jackson, issued a memo on June 6 calling on the department's lawyers and investigators to consider complaints of discrimination by transgender students on a case-by-case basis.
Although Attorney Gen. Jeff Sessions and Education Secretary Betsy DeVos issued a joint memo in February that effectively rescinded last year's Obama administration guidance that called on schools to allow students to access bathrooms and locker rooms that are in accordance with their gender identity, the memo states that transgender students still have some valid discrimination complaints worthy of an OCR investigation.
The memo lists a number of valid reasons why OCR investigators would be legally able to assert "subject matter jurisdiction over and open for investigation," such as a school's failure to quickly and equitably resolve a transgender student's complaint of sex discrimination or treating a student different because of his or her failure to conform to "stereotyped notions of masculinity or femininity."
Additionally, an investigation could be had if there is failure to assess whether sexual harassment or gender-based harassment of a "transgender student created a hostile environment."
The memo lists certain actions that might be construed as "gender-based harassment."
That list includes: "refusing to use a transgender student's preferred name or pronouns when the school uses preferred names for gender-conforming students or when the refusal is motivated by animus toward people who do not conform to sex stereotypes."
The Los Angeles Times points out that not included on the list of reasons for an investigation is the act of denying transgender students the right to use bathrooms and locker rooms consistent with their perceived gender.
"Please evaluate each allegation separately, searching for permissible jurisdictional basis for OCR to retain and pursue the complaint," the memo reads. "It is permissible, for example, for one allegation in a complaint (such as harassment based on gender stereotypes) to go forward while another allegation (such as denial of access to restroom based on gender identity) is dismissed."
In an interview with The Washington Post, Jackson said that it was important for her and DeVos that "our investigators not make the mistake of assuming that just because that particular guidance has been rescinded, that all complaints filed by transgender students are going to be dismissed."
"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," Jackson said.
The memo comes at the dismay of many left-leaning civil rights advocates, such as Catherine Lhamon, who led OCR during the Obama administration and helped draft last May's "Dear Colleague" letter to school districts that argued that Title IX protects transgender students' rights to use bathrooms and locker rooms consistent with their gender identity.
"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," Lhamon, who is now the chair of the U.S. Commission on Civil Rights, told The Washington Post. "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."
However, one OCR employee who spoke on the condition of anonymity, told the Post that the memo is a "green light" to process discrimination complaints of transgender students, which include those that deal with bathroom access. The employee noted any student who is not allowed to use bathrooms or locker rooms consistent with the gender identity could be considered a victim of sex stereotyping.
"The presumption here should be it's business as usual, and not that OCR is abdicating its role as a protector of civil rights for transgender students," the employee said.
Anurima Bhargava, who served in the Obama Justice Department, told the Post that she agrees with the OCR employee's assessment that the memo opens the door for officials to investigate complaints about bathroom access.
"It is saying proceed in accordance with the law, and the law is moving in the right direction," Bhargava explained.
