By Megan Kruse (@megankruse92)
Center for Health and Social Policy Ambassador and 2019 LBJ DC Fellow
Story originally published on PERSPECTIVESblog
Universities are tasked with enforcing Title IX, which states "No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance."
Under the Obama Administration, the scope of Title IX was broadened. The administration issued robust guidance regarding procedures for sexual misconduct investigations, expanding services for students with disabilities, and expectations for how universities accommodate transgender students. In a May 2016 Dear Colleague letter, the Obama administration defined gender identity as “an individual’s internal sense of gender” and expressly stated that schools treat a student’s gender identity as their sex for the purposes of Title IX. This Obama-era guidance, along with similar decisions for other departments, relaxed the legal concept of gender in federal programs, recognizing gender as an individual’s choice, not their sex assigned at birth.
The 2016 guidance was perceived as a victory for the transgender community. Since many who identify as transgender do not identify with the binary sex assigned to them at birth, the directives from the Obama administration made universities far more navigable for transgender students. Campuses developed methods to ensure chosen names were accommodated in registration systems, single sex bathrooms were installed, and admissions policies amended. While implementation was controversial among conservatives, the 2016 Obama guidance allowed universities to officially affirm the trans community by providing them specialized services.
In February 2017, the Trump Administration quietly rescinded the 2016 Dear Colleague letter. “Title IX prohibits discrimination on the basis of sex, not gender identity,” said Department of Education spokeswoman Liz Hill. The Trump administration criticized the latitude of the 2016 Dear Colleague letter, insisting that the previous administration overstepped its authority and should have waited for Congress to decide if various federal civil rights laws apply to transgender students. A coalition of organizations, including the National Women’s Law Center, the NAACP Legal Defense and Education Fund, Inc, the Human Rights Campaign, and MALDEF refuted these claims, saying that the Department of Education long-established their role in enforcing and clarifying civil rights protections for students.
The Trump administration’s policy platform regarding gender equity issues continues to develop, with the latest change affecting college campuses across the country.
In October 2018, the New York Times published draft policies that were distributed to various federal agencies that would amend the language used in the federal definition of “sex.” The new language reads, “Sex means a person’s status as male or female based on immutable biological traits identifiable by or before birth … The sex listed on a person’s birth certificate, as originally issued, shall constitute definitive proof of a person’s sex unless rebutted by reliable genetic evidence.” The new language was sent to the Department of Health and Human Services and the Department of Education. In particular, the distribution to the latter continues a Trump administration trend of using education, specifically colleges and universities, as incubators for his policy proposals.
In the wake of revoking the guidance, Secretary DeVos reportedly told conservative activists that the previous guidance was an example of federal overreach. Instead, DeVos stated it should be a matter that is left to the states. In the time between February 2016 and the new proposed language, universities have been left to discern if they would continue to provide certain services to transgender students.
The latest guidance is consistent with the Trump administration's treatment of transgender students. However, the leaked definition outright denies universities the right to choose the level of accommodations they provide to trans students, constricting them to an outdated interpretation of “sex.” There is also debate as to how to enforce the new definition. The leaked memo states that any dispute about one’s sex would have to be clarified using genetic testing. If we set aside the issue of identifying a test that will conclusively determine sex, there is also obvious resistance in allowing any institution to genetically test its students.
The official documentation of the proposed regulations is due to come out later this year and will be available for a public comment period, which will be open for 60 days. The agencies are supposed to consider the comments before issuing final rules with the full force of law behind them. Though when the comment period will begin is uncertain, the leak of the memo has allowed activist organizations and universities to organize their approach to responding to the new guidance, in hopes that a coordinated strategy will prevent this guidance from being enacted.
The academy should be a laboratory for productive exchanges of ideas, though universities have struggled to create truly inclusive campuses in the past. With DeVos intending to codify the leaked definition into law (in contrast to previous administrations who have issued departmental guidance), it is necessary for universities to coalesce, harness their collective voices, and speak up to tell Trump and his administration that universities will continue to be welcoming environments to all students.
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Megan Kruse is a candidate for the Master of Public Affairs (DC Concentration) and 2018-2019 CHASP Ambassador at the LBJ School of Public Affairs. After graduating with degrees in Art History and Business Administration, Megan worked in the Trinity University Office of the Dean of Students as a Student Conduct Coordinator and Title IX Investigator. In addition to these responsibilities, Megan was also elected the President of the Staff Council, engaging in discussions with high-level university administrators about benefits, compensation, and staff development. Through her work at Trinity University, Megan discovered a deep interest in the federal oversight of higher education, the intersections of Title IX and the Clery Act, and governance structures. After graduation, Megan hopes to work in on higher education policy development or in government oversight and accountability.
The views, information, or opinions expressed by blog contributors are solely those of the individual authors and do not necessarily represent those of the Center for Health and Social Policy, the LBJ School of Public Affairs, or The University of Texas at Austin or affiliated employees.
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Citations:
Brown, Emma, and Moriah Balingit. "Trump's Withdrawal of Guidance on Transgender Student Rights Leaves Bathroom Questions up to Schools and States." The Washington Post. February 23, 2017. Accessed October 27, 2018.https://www.washingtonpost.com/local/education/trumps-withdrawal-of-guid....
Casey, Logan. "After Trump Rescinds Title IX Guidance, What's next for Transgender Students' Rights?" Brookings. March 01, 2017. Accessed October 27, 2018. https://www.brookings.edu/blog/brown-center-chalkboard/2017/03/01/after-....
“Dear Colleague Letter.” U.S. Department of Education. April 4, 2011. Accessed October 27, 2018.https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.html
“Dear Colleague Letter on Transgender Students.“ U.S. Department of Education & U.S. Department of Justice. Office for Civil Rights & Civil Rights Division. May 13, 2016. Accessed October 27, 2018.https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201605-titl...
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