Monday, October 18, 2021

Feds: We have no jurisdiction in transgender cases


According to a report in the Huffington Post last week, the Office for Civil Rights at the US Department of Education, under Secretary Betsy DeVos, has dismissed a few complaints alleging discrimination against transgender students, claiming the office has no jurisdiction in the matter.

The office had previously closed two cases, back in June, but those cases involved the use of bathroom-like facilities by transgender students in schools. The three new cases are unique in that, while they also involve alleged discrimination against transgender students, they come after the federal education department rescinded guidance about how schools should handle Title IX investigations.

The new dismissals also come with a new claim: “OCR determined we do not have subject matter jurisdiction over Allegation 1, insomuch as the alleged discriminatory conduct you described does not raise any prohibitive bases under the civil rights laws OCR enforces.” That’s what Huffington Post says is in a letter the publication obtained related to the dismissals.

OCR, in dismissing these complaints, seems to be relying on a definition of “sex” that is not only inconsistent with the Obama administration guidance that was rescinded more recently but with court cases that have been decided in more recent years across the country.

The Huffington Post quoted Nathan Smith, director of public policy for the GLSEN, or the Gay, Lesbian and Straight Education Network, as saying, “I think what’s important to note is it’s not that the Obama administration came out of the blue to say Title IX now covers transgender students. There’s a wave of court cases from district and circuit courts that have upheld that understanding.”

Bottom line: Title IX says schools can’t discriminate against individuals on the basis of their “sex.” The word “sex” is used in the law, and to a biologist like me, that refers to chromosomes. To a doctor, it refers to external and internal anatomy. To a student with gender dysphoria, it means something completely different.

What courts have consistently found is that it is a student’s gender identity that is protected against discrimination when Title IX says “sex.”

Knowing that this problem is going to keep coming up, I have called on Congress to write a new law protecting students against discrimination and adding significantly to or, at the very least, broadening the list of protected categories so that transgender students are unambiguously included in the law.

But so far, we can’t even seem to pass a budget or useful immigration reform, and women are still being abused and taken advantage of. That amounts to half our population, whereas the transgender population is much smaller.

Which doesn’t mean we can ignore it, and if OCR has dismissed these cases thinking it can’t intervene, that just doesn’t make sense. Cases like this are why we have an OCR in the first place.

Paul Katula
Paul Katula is the executive editor of the Voxitatis Research Foundation, which publishes this blog. For more information, see the About page.

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