Biden Moves to Reverse DeVos on Transgender Students’ Treatment

  • Signals court workplace ruling applies to schools
  • LGBT advocates press for access to bathrooms, sports

President Joe Biden took the first steps this week to reverse Trump administration policies on the rights of transgender students.

A White House executive order this week says a Supreme Court decision on workplace discrimination against lesbian, gay, bisexual and transgender people also applies to schools, housing, and immigration.

The Trump administration withdrew Obama-era guidance on protections for transgender students and said states should decide the matter. Last year, it pressured Connecticut schools over policies granting transgender athletes the ability to compete on teams matching their identity. The Education Department said those policies violated the rights of students assigned female gender at birth.

Biden’s executive order directs federal agencies to reevaluate their policies on LGBT rights in light of the court’s decision on workplace protections.

Derek R. Henkle/AFP via Getty Images
The Trump administration’s reversal of federal protections of transgender students’ bathroom rights sparked protests, including one Feb. 25, 2017 in Chicago, where Stephanie Kalka, 54, held up a sign.

The Supreme Court ruled last year that Title VII of the 1964 Civil Rights Act protections for sex discrimination extend to LGBT workers. Advocates argued that the court’s reasoning should lead the Education Department to revisit its policies on transgender students. The new executive order confirms those calls, they said.

“What it means is the Office for Civil Rights at the Education Department is going to start enforcing the law. It’s that simple,” said Mara Keisling, executive director of the National Center for Transgender Equality.

The court settled three cases in its ruling—Altitude Express v. Zarda, Bostock v. Clayton County, GA, and R.G. & G.R. Harris Funeral v. EEOC. Title VII protections against discrimination on the basis of sex also applied to gender identity and sexual orientation, the court found.

“The Bostock decision was about Title VII and employment,” Keisling said. “But it’s obvious to everybody with any kind of common sense that the same arguments apply not just to employment discrimination but also to Title IX, which protects people based on sex.”

Bathroom Battles

Students’ access to bathrooms and locker rooms matching their gender identities has been a flashpoint in many schools. Lawyers suing school districts over bathroom policies said the Supreme Court’s ruling would be a factor in cases.

Citing the Bostock decision, the U.S. Court of Appeals for the Fourth Circuit ruled in August that a Virginia school district violated the constitutional rights of Gavin Grimm, a transgender student, by requiring him to use a single-stall bathroom alternative for students with “gender identity issues.”

But the Education Department led by then-Secretary Betsy DeVos insisted that Bostock didn’t have any bearing on the rights of transgender students and only applied to the workplace. It told Connecticut schools last year that they risked losing federal school desegregation funds if they failed to pull out of an athletics conference allowing transgender students to compete on teams matching their gender identity.

Christina Holcomb, legal counsel for the Alliance Defending Freedom, said the executive order was a “swift and ill-considered effort to wipe out long-standing protections for women and girls.”

ADF sued on behalf of female students who said their rights were violated by the Connecticut athletic policies.

The Education Department should withdraw threats to the funding for Connecticut schools, said Eliza Byard, executive director at GLSEN, an organization that fights discrimination against LGBT youth. Biden’s executive order is a “a critical balm for a population of students that has been under attack for four years,” she said.

To contact the reporter on this story: Andrew Kreighbaum in Washington at akreighbaum@bgov.com

To contact the editors responsible for this story: Robin Meszoly at rmeszoly@bgov.com; Heather Rothman at hrothman@bgov.com

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