The Department of Education reportedly said civil rights law didn’t prohibit discrimination based on gender identity and that it wouldn’t take action on transgender students’ complaints about schools banning them from opposite-sex bathrooms.
“In the case of bathrooms … long-standing regulations provide that separating facilities on the basis of sex is not a form of discrimination prohibited by Title IX,” Liz Hill, an Education Department spokeswoman, told BuzzFeed News on Thursday.
Although the department won’t investigate complaints about bathroom access, Hill did say it would protect individuals “penalized or harassed for failing to conform to sex-based stereotypes.”
In February of last year, both the Department of Justice and the Education Department rescinded bathroom guidance issued during the Obama administration.
That February letter indicated the department would review relevant legal issues, but Thursday’s statement appeared to represent an official interpretation of civil rights law.
Peter Sprigg, senior fellow for policy studies at the Family Research Council, backed the department’s interpretation and told IJR that “any other interpretation could not possibly be defended as representing the original meaning or intent at the time of the law’s enactment.”
But the department’s interpretation drew criticism from Catherine Lhamon, the former head of the Education Department’s Office of Civil Rights under Obama.
“This new categorical bar of civil rights protection for transgender children required to attend schools every day ignores the text of the law, courts’ interpretation of the law, the stated position of the department to date, and human decency,” Lhamon told BuzzFeed News.
According to BuzzFeed News, federal appeals courts have interpreted Title IX as protecting transgender students’ ability to use a bathroom of their choice.
But according to Sprigg, those court rulings didn’t sway the department.
“The fact that two circuit courts, in preliminary judgments, have come to different conclusions hardly represents binding precedent,” he told IJR.
Although the Education Department didn’t answer additional questions, the Justice Department reiterated its commitment to protect civil rights.
“The Department of Justice cannot expand the law beyond what Congress has provided. The Department of Justice remains firmly committed to protecting the civil and constitutional rights of all Americans and will aggressively enforce all civil rights laws enacted by Congress,” an official reportedly said.
But others, like House Minority Leader Nancy Pelosi (D-Calif.) and the National Center for Transgender Equality (NCTE), blasted the department’s decision.
In a statement provided to IJR, NCTE Director of Policy Harper Jean Tobin said the department appeared to turn its back on transgender students:
Trans students have stated that they avoid using the restroom all day, or avoid eating and drinking so that they will not have to. The Department appears to be saying it will turn its backs on these students even though courts have specifically said they are protected, forcing them to take the longer and far more costly route of suing in federal court.
The news came after a court ruled the military had to admit transgender service members despite the administration’s attempt to ban transgender enlistment.
Editor’s note: This post has been updated to include statements from the Family Research Council and National Center for Transgender Equality.