Most recently, in May 2017, a unanimous three-judge panel for 7th Circuit wrote in i">>Whitaker v. Kenosha Unified School District that a “policy that requires an individual to use a bathroom that does not conform with his or her gender identity punishes that individual for his or her gender non‐conformance, which in turn violates Title IX."
The school district in Wisconsin then paid $800,000 to settle the complaint.
Harper Jean Tobin, policy director for the National Center for Transgender Equality, told BuzzFeed News, “It marks a shift in position for the Education Department that is particularly remarkable in light of case law."
For the department to neglect those decisions, Tobin said, is to "ignore the law in favor of their ideology."
Hill did not answer questions about how the department reconciles its position with conflicting circuit court rulings, or why it won’t accept the complaints arising even from students inside those circuits (which encompass Illinois, Indiana, Kentucky, Michigan, Ohio, and Tennessee, and Wisconsin).
In May 2016, the Obama administration issued guidance that said Title IX ensures transgender students can use restrooms and other school facilities in accordance with their gender identity. (A district court suspended that guidance after a challenge led by the state of Texas.) But even before it had guidance on the matter, the Obama administration enforced this view of Title IX in 2013.
With Trump in office, the Justice Department and Education Department sent a Dear Colleague letter to local officials in February 2017 rescinding Obama-era guidance. But the Trump administration letter did not assert a position on what Title IX required, instead announcing that officials were going to "more completely consider the legal issues involved." It made similar statements in briefs filed at the Supreme Court and US District Court in North Carolina.
In June 2017, Candice Jackson, acting head of the Education Department's Office for Civil Rights, issued a memo that said it would be "permissible" for a complaint concerning a restroom to be dismissed. But that memo did not assert any interpretation of the law or a general rule for handling such complaints.
The Justice Department said in October that Title VII of the Civil Rights Act of 1965, which bans sex discrimination in the workplace, does not protect transgender people.
But it did not make such a clear statement on the education law. Rescinding the school guidance created the absence of a position for recipients of federal education money.
Officials at the Education and Justice Department’s did not answer questions from BuzzFeed News about when they stopped considering transgender student restroom complaints as a matter of policy and how many of those complaints have been rejected.
A Justice Department official told BuzzFeed News on Friday, “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.”
But Lhamon disagreed, given her view that Title IX doesn’t actually tie the administration's hands.
"That interpretation represents an appalling abdication of federal enforcement responsibility, inconsistent with the law and with courts’ interpretation of the law, and totally lacking in human compassion for children in school, whom the Department is charged to protect,” she said.
Source : https://www.buzzfeed.com/dominicholden/edu-dept-trans-student-bathrooms650