{"id":618,"date":"2015-04-07T17:56:58","date_gmt":"2015-04-07T17:56:58","guid":{"rendered":"http:\/\/www.emily-esque.com\/wp\/?p=618"},"modified":"2015-04-07T17:58:46","modified_gmt":"2015-04-07T17:58:46","slug":"petition-to-dept-of-education-formal-interpretation-of-title-ix-to-protect-trans-and-non-binary-students","status":"publish","type":"post","link":"http:\/\/www.emily-esque.com\/wp\/?p=618","title":{"rendered":"Petition to Dept. of Education – Formal Interpretation of Title IX to Protect Trans and Non-Binary Students"},"content":{"rendered":"

Given the rash of anti-trans legislation and school board actions in recent months, the Department of Education’s January 7, 2015 letter on trans students and restroom access<\/a>\u00a0is proving insufficient to encourage compliance with Federal law on this point, which is that:<\/p>\n

\n

The Department\u2019s Title IX regulations permit schools to provide sex-segregated restrooms, locker rooms, shower facilities, housing, athletic teams, and single-sex classes under certain circumstances. When a school elects to separate or treat students differently on the basis of sex in those situations, a school generally must treat transgender students consistent with their gender identity. OCR also encourages schools to offer the use of gender-neutral, individual-user facilities to any student who does not want to use shared sex-segregated facilities.<\/p>\n<\/blockquote>\n

As such, today I filed a formal Petition for Interpretation under the Administrative Procedure Act with the Department of Education’s Office of Civil Rights<\/a>. \u00a0The Petition does not call for a new interpretation of Title IX, but rather asks the Department of Education to reissue its existing interpretation in a more formal way to put the regulated community of school districts, as well as state legislatures, on notice of what is expected of them with respect to transgender and non-binary students.<\/p>\n

<\/p>\n

\n

\n

Before the
\nDepartment of Education
\nOffice of Civil Rights<\/p>\n

\u00af\u00af\u00af\u00af\u00af\u00af\u00af\u00af\u00af\u00af\u00af\u00af\u00af\u00af\u00af\u00af\u00af\u00af\u00af\u00af\u00af\u00af\u00af\u00af\u00af\u00af\u00af\u00af\u00af\u00af\u00af\u00af\u00af\u00af\u00af\u00af\u00af\u00af\u00af
\nPetition for Interpretation
\nAccess to Sex-Segregated Facilities and Gender Identity<\/p>\n

\u00af\u00af\u00af\u00af\u00af\u00af\u00af\u00af\u00af\u00af\u00af\u00af\u00af\u00af\u00af\u00af\u00af\u00af\u00af\u00af\u00af\u00af\u00af\u00af\u00af\u00af\u00af\u00af\u00af\u00af\u00af\u00af\u00af\u00af\u00af\u00af\u00af\u00af\u00af
\nSubmitted by Emily T. Prince, Esq.<\/p>\n

\u00af\u00af\u00af\u00af\u00af\u00af\u00af\u00af\u00af\u00af\u00af\u00af\u00af\u00af\u00af\u00af\u00af\u00af\u00af\u00af\u00af\u00af\u00af\u00af\u00af\u00af\u00af\u00af\u00af\u00af\u00af\u00af\u00af\u00af\u00af\u00af\u00af\u00af\u00af<\/p>\n

Pursuant to the Administrative Procedure Act, 5 U.S.C. 551 et seq., Petitioner submits this petition for interpretation of Title IX of the Education Amendments of 1972, 20 U.S.C. 1681 et seq. (Title IX). Specifically, Petitioner requests that the Department of Education Office of Civil Rights (OCR) reissue its existing guidance in the form of a Federal Register notice to improve compliance with Title IX.<\/p>\n

On January 7, 2015, OCR issued a letter (the Interpretation Letter) stating that:<\/p>\n

The Department\u2019s Title IX regulations permit schools to provide sex-segregated restrooms, locker rooms, shower facilities, housing, athletic teams, and single-sex classes under certain circumstances. When a school elects to separate or treat students differently on the basis of sex in those situations, a school generally must treat transgender students consistent with their gender identity. OCR also encourages schools to offer the use of gender-neutral, individual-user facilities to any student who does not want to use shared sex-segregated facilities.<\/p><\/blockquote>\n

However, since the issuance of that letter, several state and local governments have taken steps to preclude transgender children from using sex-segregated facilities appropriate for their gender identity; i.e., requiring children to use restrooms consistent with their designated sex at birth. Accordingly, it is necessary for OCR to reissue its existing interpretation in a more public and formal setting. Doing so will serve the interest of increasing compliance among the regulated community.<\/p>\n

OCR noted in its letter that it has resolved investigations involving transgender students in two school districts: Arcadia Unified School District[1]<\/a> and Downey Unified School District.[2]<\/a> However, since the issuance of the Interpretation Letter, more school districts have considered instituting such policies. Litigation is ongoing in Gloucester County, Virginia.[3]<\/a> In a recent vote, Stafford County, Virginia adopted similar policies.[4]<\/a> Entire states have considered the policies that OCR has determined to violate Title IX, with the Kentucky Senate voting to approve a bill that would have precluded transgender and nonbinary students from using facilities appropriate for their gender identity.[5]<\/a> Comparable legislation is under consideration in Texas, with the Texas bill offering statutory damages of $2,000 for any time a cisgender student shared a restroom with a transgender student.[6]<\/a> The Interpretation Letter is proving insufficient at communicating to the regulated community of educational institutions, and to state legislatures, that transgender and nonbinary students must have access to sex-segregated facilities that are consistent with their gender identity.<\/p>\n

Rather than continue to attack the problem of anti-trans school policies on a case-by-case basis, issuing a notice of interpretation in the Federal Register will conserve the resources of both OCR and the Civil Rights Division of the Department of Justice (CRD). With a formal interpretation, state and local legislative bodies will be suitably apprised of the interpretation and warned of the consequences for noncompliance. Additionally, with a formal interpretation published, it will be easier for OCR and CRD to hold educational institutions accountable in circumstances where the interpretation is ignored in favor of discrimination against transgender students by making the law on the point clearly established.<\/p>\n

Given that there does not seem to be any decrease in the frequency of anti-trans school policies, an escalation in formality of agency guidance is necessary. For the foregoing reasons, Petitioner asks that the Interpretation Letter be revised and reissued as a formal interim or final interpretation in the Federal Register.<\/p>\n

\n

 <\/p>\n

[1]<\/a> OCR Case No. 09-12-1020 (July 24, 2013), http:\/\/www.justice.gov\/crt\/about\/edu\/documents\/arcadialetter.pdf<\/a> (resolution letter); and http:\/\/www.justice.gov\/crt\/about\/edu\/documents\/arcadiaagree.pdf<\/a> (resolution agreement).<\/p>\n

[2]<\/a> OCR Case No. 09-12-1095 (October 14, 2014), http:\/\/www2.ed.gov\/documents\/press-releases\/downey-school- district-letter.pdf<\/a> (resolution letter); and http:\/\/www2.ed.gov\/documents\/press-releases\/downey-school-district- agreement.pdf<\/a> (resolution agreement).<\/p>\n

[3]<\/a> American Civil Liberties Union, \u201cACLU Files Federal Discrimination Complaint against Va. School Board for Bathroom Policy,\u201d Dec. 19, 2014, available at https:\/\/www.aclu.org\/lgbt-rights\/aclu-files-federal-discrimination-complaint-against-va-school-board-bathroom-policy<\/a>.<\/p>\n

[4]<\/a> Dominic Holden, BuzzFeed News, \u201cAnother Virginia School District Tests Federal Rules with Anti-Transgender Policy,\u201d Mar. 25, 2015, available at http:\/\/www.buzzfeed.com\/dominicholden\/another-virginia-school-district-tests-federal-rules<\/a>.<\/p>\n

[5]<\/a> Sunnivie Brydum, The Advocate, \u201cKentucky Senate Quietly Approves Bill Targeting Trans Students\u201d, Feb. 27, 2015, available at http:\/\/www.advocate.com\/politics\/transgender\/2015\/02\/27\/kentucky-senate-quietly-approves-bill-targeting-trans-students<\/a>; but see<\/em> Mitch Kellaway, The Advocate, \u201cKentucky\u2019s Transphobic Legislation Dies After \u2018Last Ditch Effort,\u2019\u201d Mar. 25, 2015, available at http:\/\/www.advocate.com\/politics\/transgender\/2015\/03\/25\/kentuckys-transphobic-legislation-dies-after-last-ditch-effort<\/a>.<\/p>\n

[6]<\/a> Sunnivie Brydum, The Advocate, \u201cTexas Doubles Down on Transphobic Legislation, Adding $2,000 Fine for \u2018Wrong\u2019 Bathroom Use,\u201d Mar. 10, 2015, available at http:\/\/www.advocate.com\/politics\/transgender\/2015\/03\/10\/texas-doubles-down-transphobic-legislation-adding-2000-fine-wrong-ba<\/a>.<\/p>\n","protected":false},"excerpt":{"rendered":"

Given the rash of anti-trans legislation and school board actions in recent months, the Department of Education’s January 7, 2015 letter on trans students and restroom access\u00a0is proving insufficient to encourage compliance with Federal law on this point, which is that: The Department\u2019s Title IX regulations permit schools to provide sex-segregated restrooms, locker rooms, shower […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_feature_clip_id":0,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":true,"jetpack_social_options":{"image_generator_settings":{"template":"highway","default_image_id":0,"font":"","enabled":false},"version":2},"jetpack_post_was_ever_published":false},"categories":[98,11,101,1],"tags":[7],"class_list":["post-618","post","type-post","status-publish","format-standard","hentry","category-education","category-other-docs","category-restrooms","category-uncategorized","tag-ed"],"jetpack_publicize_connections":[],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"jetpack_shortlink":"https:\/\/wp.me\/p5pI5m-9Y","_links":{"self":[{"href":"http:\/\/www.emily-esque.com\/wp\/index.php?rest_route=\/wp\/v2\/posts\/618","targetHints":{"allow":["GET"]}}],"collection":[{"href":"http:\/\/www.emily-esque.com\/wp\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/www.emily-esque.com\/wp\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/www.emily-esque.com\/wp\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"http:\/\/www.emily-esque.com\/wp\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=618"}],"version-history":[{"count":3,"href":"http:\/\/www.emily-esque.com\/wp\/index.php?rest_route=\/wp\/v2\/posts\/618\/revisions"}],"predecessor-version":[{"id":623,"href":"http:\/\/www.emily-esque.com\/wp\/index.php?rest_route=\/wp\/v2\/posts\/618\/revisions\/623"}],"wp:attachment":[{"href":"http:\/\/www.emily-esque.com\/wp\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=618"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/www.emily-esque.com\/wp\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=618"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/www.emily-esque.com\/wp\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=618"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}