A spokesperson for the Department of Education told BuzzFeed News on Monday the agency will not consider or investigate complaints filed by transgender students against schools banning them from using bathrooms that match their gender identity.
Although the department has not made a formal announcement, Liz Hill, a department spokesperson, responded to a BuzzFeed email that inquired about the agency's position on transgender students' restroom complaints. "Title IX prohibits discrimination on the basis of sex, not gender identity," Hill told BuzzFeed in an email, referring to Title IX, a federal civil rights law passed in 1972.
In February of 2017, the Department of Education removed the guidance set by the Departments of Justice and Education under the Obama administration on transgender restroom access. "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," Hill wrote in her email to BuzzFeed. Other complaints filed by transgender students may still be investigated by the Department of Education.
This longstanding debate has passed through two federal appeals court decisions, both of which held that students could use the bathrooms matching their gender identity. However, the issue remains a divisive factor for lower courts.
Catherine Lhamon, the former leader under the Obama administration of the Department of Education's Office for Civil Rights, told BuzzFeed this stance might not legally hold up. "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 said.