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If DeVos Wants More Protection for Transgender Students, Here Are Options

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It's been several weeks since President Donald Trump rescinded guidance issued by the Obama administration designed to protect transgender students. Secretary of Education Betsy DeVos, while arguing that the issue is ultimately better left to states and districts, also stressed the need to protect all students from bullying and harassment— she called this "not only a key priority for the Department, but for every school in America." 

The issue was highlighted again last week, when Gavin Grimm, a Virginia student and plaintiff in a high-profile case about transgender rights, spoke at a civil rights event hosted by House Democrats on Capitol Hill:

The Obama-era guidance said that public schools needed to allow transgender students to use facilities, like restrooms and locker rooms, that matched their gender identity. Need a refresher on the issue? Click here for some legal background on transgender student rights, and go here for a review of the Obama guidance that was issued in 2016. 

So what if DeVos wants to promote a safe (or safer) environment for transgender students without being able to lean on that guidance? We asked Seth Galanter for help answering that question.

Galanter is a former principal deputy assistant secretary for human rights in Obama's Education Department where he worked under former Assistant Secretary for Civil Rights Catherine Lhamon. He laid out a few options for DeVos on this issue. But he also stressed that in his opinion, these are half measures and that DeVos and Attorney General Jeff Sessions never should have repealed the Obama-era guidance in the first place.

"It's critical that Secretary DeVos confirm that transgender students have a legal right, and not just a moral right, to be safe in schools," Galanter said.

The main theme of his suggestions? DeVos could build on her stated desire to protect students from harassment and bullying in schools by adding protections for transgender students, at least in a somewhat indirect fashion, according to Galanter. Here they are:

  1. The department's office for civil rights is in charge of regional offices staffed with investigators, and OCR directs those regional staffers how to proceed. Galanter said there are probably pending cases that involve transgender students, and more specifically, cases that involve the harassment of transgender students. And OCR has to give regional offices directions about how to handle various cases, he said. So in short, OCR could direct these regional offices to continue investigating these transgender-harassment cases, and allow for (or ensure that) these instructions to regional investigators be made public. Continuing these investigations and letting the public know about it could have an impact.
  2. A related option would be to reach a settlement with a district on a particular case, and for that settlement to include some sort of new protection for the student or students in question. Again, this would involve a harassment case of transgender students, not those involving equal access to school facilities.
  3. She could also change the department's Civi Rights Data Collection to ask school districts about incidents of harassment of transgender students. That's a challenging idea as well: It might not be clear to a principal in many cases why exactly an individual student was bullied, for example. And many districts might feel that it would be just one more data request on top of an already large data-collection burden they bear. 

Here's what Galanter said about the first two, related options for DeVos: "To avoid confusion, Secretary DeVos needs to instruct the OCR career investigators that they should continue to investigate claims of harassment against transgender students, and when they find a violation, obtain quick relief for the student."

We reached out to the Education Department to ask if they are considering these or any other options to signal that DeVos might seek new ways to prioritize transgender student protections. We'll update this post if we hear back. Galanter said the actions he suggested above could be taken under the auspices of Title IX. However, it's worth noting that the guidance DeVos agreed to rescind dealt with harassment of transgender students, not just the use of faciliites.

Not everyone agrees with Galanter that the federal government needs to get back into this debate. For example, here's the American Enterprise Institute's Rick Hess, who writes an opinion blog for edweek.org, discussing why he believes Trump officials made the right move and that reactions to it were often misguided in a National Review article:

Here's what really happened. The Trump administration reversed an Obama-era attempt to rewrite the plain meaning of federal law in order to impose a radical and intrusive litany of practices governing dormitories, locker rooms, and sports teams. If Obama's goal had simply been to ensure that schools find ways to make appropriate accommodations for transgender students, there would be no big issue. But instead, Obama opted to open a new front in the culture war.

For an in-depth discussion about what the rollback of the transgender guidance means for schools, check out this recent PBS Newshour segment featuring our Education Week colleague Evie Blad: 

Photo: Education Secretary Betsy DeVos addresses Education Department staff last month at the Education Department in Washington. (AP Photo/Molly Riley)


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