A draft Trump administration policy redefining gender as “a biological, immutable condition determined by genitalia at birth” would erase recognition of 1.4 million transgender Americans and eliminate their civil rights protections, making it “next to impossible… [for students] to raise complaints about treatment based on their gender identities,” The New York Times and Inside Higher Ed report.
Removing recourse options
The policy would roll back Obama-era Title IX guidance that “loosened the legal concept of gender in federal programs, including in education and health care, recognizing gender largely as an individual’s choice and not determined by the sex assigned at birth,” writes The Times.
Rewriting the definition of gender would eliminate the option for transgender students to file complaints with the federal government about discriminatory treatment by a school. Under the policy change, transgender students’ main recourse to address bias at schools that do not protect them from discrimination would be suing the school, an often prohibitively expensive process.
Toll on transgender students
Catherine Lhamon, former assistant secretary for civil rights at the Department of Education under President Obama, told Inside Higher Ed that the proposals would be “catastrophic to transgender students” and would create a “permission structure for discrimination.” Without Title IX protection, transgender students could see repercussions in areas including admissions decisions, housing arrangements, bathroom use, and sports participation.
Recognition of gender identity also affects students’ mental health, Avery Willis, a student at Georgia State University and member of a national gender-nonconforming youth-leadership group, told The Chronicle of Higher Education.
Decentralization of guidance
The news follows action by Secretary of Education Betsy Devos to reduce the Education Department’s role in protecting against gender identity discrimination. Devos “rescinded the Obama administration’s 2016 guidance that expanded investigations of gender discrimination to include allegations of transgender bias and stated institutions must allow LGBTQ students to use bathrooms that align with their gender identity,” reports Education Dive. It is unclear which definition of gender will appear in the Department of Education’s new regulations, due out this fall.
Twenty states and Washington, D.C., “explicitly ban discrimination on the basis of sexual orientation and gender identity,” while 26 have no such protections.