”If everything is harassment, then nothing is,” Secretary of Education Betsy DeVos said while announcing that the Department of Education had begun the process of rescinding Obama administration guidance for schools handling sexual violence allegations. The premise of DeVos’ action—the claim that President Barack Obama’s guidance failed students, particularly accusers—is a fallacy: In fact, Obama-era guidance improved on-campus adjudication processes. DeVos’ false characterization is also a neat excuse for promulgating a rule through notice and comment, which is far more difficult to reverse than mere guidance.
DeVos’ rhetoric and willful distortion come as no surprise. She has donated thousands of dollars to the Foundation for Individual Rights in Education, which advocates on behalf of those accused of sexual assault, and has also met with extremist men’s rights groups.
Of course, this is only the latest sally in the Trump administration’s wholesale attack on protections for women and LGBT people.
Title IX of the Civil Rights Act of 1964, the law that the Obama-era guidance interpreted, seems straightforward enough: It’s federal legislation that prohibits schools and educational programs that receive federal funds from discriminating against students on the basis of sex. But the law contains multitudes.
It was Title IX that allowed the federal government to intervene on behalf of survivors of sexual assault on campuses until DeVos’ announcement last week. In 2011, Obama instructed institutions to treat sexual assault and violence as forms of sexual harassment under Title IX. Three years later, the administration issued 53 pages of specifics, from defining sexual violence to setting procedural parameters for responding to sexual assault.
From May of 2016 to February of 2017, Title IX was also the basis for ensuring that schools accommodated transgender students. The Obama administration secured these protections by declaring that the “obligation to ensure nondiscrimination on the basis of sex requires schools to provide transgender students equal access.” The core logic: Gender identity should be treated as sex. That guidance survived just one month of the Trump presidency.
These Obama policies were natural outgrowths of modern sex discrimination jurisprudence; the Trump administration’s actions, on the other hand, represent a stark departure.
The Supreme Court established the current frame for reviewing sex discrimination claims nearly 30 years ago. In 1989, in Price Waterhouse v. Hopkins, the Supreme Court ruled that sex stereotyping—i.e., imposing expectations about how persons should act based on sex—constitutes gender and sex discrimination under Title VII, the workplace analog to Title IX that prohibits employers from discriminating on the basis of sex. A later Supreme Court decision clarified that Title VII covers all discrimination motivated by sex, including acts perpetrated against someone of the same sex.
Appellate courts—and district courts—have applied the Supreme Court’s ruling on sex discrimination in cases involving a gender-non-conforming, transgender, or LGB plaintiff. For example, the First Circuit found that refusing to provide a loan application to a man dressed in feminine attire based on sex stereotyping constitutes sex discrimination under the Equal Credit Opportunity Act. Relying on Price Waterhouse, the Ninth Circuit found that an act of violence against a transgender woman, motivated by the perpetrator’s belief that she was a man who “failed to act like” a man, constituted a crime motivated by gender.
The usually conservative Sixth Circuit has determined that, under Title VII, “‘sex’ encompasses both the biological differences between men and women, and gender discrimination, that is, discrimination based on a failure to conform to stereotypical gender norms.” The Eleventh Circuit, referring back to prior cases, stated the law even more clearly: “Discrimination against a transgender individual because of her gender-nonconformity is sex discrimination, whether it’s described as being on the basis of sex or gender.”
The Supreme Court will likely face the question within the year of whether sex encompasses sexual orientation under the Civil Rights Act. (It’s “face” rather than “answer” because punting is always a possibility.) As rulings on the definition of “sex” under Title VII bear on Title IX, and vice versa, any one of these cases could effectively determine the outcome in all. Multiple cases, each compelling, are winding their way to the Court.
Consider Gavin Grimm, who shot to relative fame as a high school sophomore when he sued his school for the right to use the men’s bathroom. In May of 2016, the Fourth Circuit upheld the policy under which Grimm claimed that right—the Obama Department of Education’s interpretation of sex under Title IX as including gender identity—and issued a preliminary injunction to bar the school from implementing its anti-trans policy.
The Supreme Court put off hearing the appeal until after the Trump administration rescinded the Obama-era guidance defining sex, leading the Court to send the case back to the Fourth Circuit. Because Grimm has already graduated, he is no longer seeking a temporary halt to the anti-transgender bathroom policy, but he’s moving ahead with a challenge to the policy itself. The Supreme Court has already handed down one victory to Grimm: When Liberty Counsel, the National Organization for Marriage, and the Center for Constitutional Jurisprudence misgendered Grimm in their amicus briefs, the Clerk of the Court reprimanded them.
The Seventh Circuit has paved the way, and recently Kimberly Hively, a lesbian suing her Indiana employer for discrimination, won the first major Title VII victory. After a three-judge panel ruled against her based on circuit precedent, affirming that she was not protected from anti-LGBT discrimination under Title VII’s sex discrimination prohibition, she petitioned the full Seventh Circuit to rehear the case. On April 4th, 2017, eight judges signed onto an opinion revising the circuit’s interpretation of Title VII, citing Supreme Court cases in support of their position; just three opposed Hively.
A second Title VII case growing out of alleged discrimination against a now-deceased New York skydiver could effect the same sea change in the Second Circuit. On April 18th, 2017, just two weeks after the full Seventh Circuit overturned its precedent, Donald Zarda’s three-judge panel held Title VII did not protect him from discrimination on the basis of sexual orientation under current circuit precedent. But the judges noted that he would be entitled to a retrial if the full court overturned precedent. Zarda’s case is now awaiting a full court, or en banc, re-hearing in hopes of just such an outcome. Success seems likely—despite Attorney General Jeff Sessions’ brief arguing for the exclusion of LGBT people from protections.
The case that’s farthest down the path to the Supreme Court is that of Jameka Evans, a Georgia lesbian. She alleges that she was discriminated against because of her sexual orientation while working as a security officer at a hospital in Savannah. The Eleventh Circuit panel hewed to its precedent, reaffirming that Title VII does not cover sexual orientation, and the full court refused to rehear the case. This month, Lambda Legal asked the Supreme Court to hear it.
If Trump wins either Title IX fights, the damage will last years. Revising or repealing a formal rule from the Department of Education that minimizes the department’s own role would entail a lengthy administrative process. Rebuilding infrastructure for addressing sexual violence on campuses upon resumption of federal involvement would likewise take a long time. And if the Court sides with Trump’s Department of Justice, finding that “sex” doesn’t encompass sexual orientation and gender identity, that ruling would strip federal protections from those who have them—in the Seventh Circuit—and foreclose others. In sum, fewer sexual assault survivors will receive justice, and more LGBT people will face discrimination with impunity for years to come.
