The Trump administration said it plans to investigate alleged discrimination against LGBTQ students following this summer’s landmark Supreme Court rulings that said sexual orientation and gender identity are protected traits under existing civil rights law — but only in certain circumstances, according to documents released by the Education Department’s Office for Civil Rights.
In updated guidance posted via a letter to various Connecticut schools, the Education Department said transgender students still can’t play on school sports teams that correspond with their gender identity and instead should be assigned to teams that correspond with their biological gender at birth.
At the same time, in a separate case, the department said it agreed to investigate claims of discrimination based on sexual orientation where a student alleged “homophobic bigot[ry]” at her school.
Sunu Chandy, the legal director at the National Women’s Law Center, said the two moves by the department are “totally at odds.”
“Do we applaud that someone won’t be discriminated against based on sexual orientation from participating in sports? Absolutely. But we cannot do that without saying this other decision that excludes transgender students, essentially, is — it’s so harmful and so offensive to us, as it would be to transgender students,” Chandy said.
The department’s shift comes shortly after the Supreme Court said that discrimination on the basis of sex, which is forbidden in the workplace under the Civil Rights Act of 1964, includes sexual orientation and gender identity. The Education Department said because the opinion was about discrimination in the workplace, it does not have authority over the Education Department’s Title IX statute — the law that prohibits sex discrimination in schools.
In one of the letters released last week, the department noted that the Supreme Court had “recognized the significant differences between workplaces and schools,” citing previous Supreme Court rulings.
“You can’t immediately just say, because the court has said no employment discrimination where sex now reaches certain aspects of sexual orientation and gender identity that leads to a particular outcome for bathrooms, locker rooms or sports teams,” said Ryan Anderson, a senior research fellow at conservative-leaning think tank Heritage Foundation.
However, in one of two letters published by the department outlining the updated policy, acting Assistant Secretary for Civil Rights Kimberly Richey said the ruling “guides OCR’s understanding that discriminating against a person based on their homosexuality or identification as transgender generally involves discrimination on the basis of their biological sex.”
An Education Department official said the new protections apply to complaints involving individuals being excluded from participation, denied the benefit of, or subjected to discrimination under an education program or activity.
It does not apply to situations where schools separate students by sex in situations like locker rooms and bathrooms, or sports teams, the official said.
Of transgender athletes, the Education Department’s Richey said in one of the documents, “If the school offers separate-sex teams, the male student-athlete who identifies as female must play on the male team, just like any other male student-athlete,” arguing that separating students for single-sex sports teams “must be based on biological sex.”
Chase Strangio, the deputy director for transgender justice at the ACLU’s LGBT and HIV Project, said the Education Department is “taking away much more than they’re giving,” with the documents released.
“From the perspective of trans students, you can’t claim to protect…
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