Federal Proposal to Redefine Gender Throws College Policies Into Uncertainty

Jeff Chiu, AP Images

Susan Stryker saw it coming. On Saturday night the associate professor of gender and women’s studies at the University of Arizona had some friends over for dinner. They discussed how on the passport section of the State Department’s website, the term “gender marker” had been changed to “sex marker.”

It’s a minor shift to someone who isn’t familiar with transgender issues. But for Stryker, a founder of the journal Transgender Studies Quarterly, it foreshadowed the headlines she awoke to on Sunday.

The New York Times reported that, according to a memo, the Trump administration is considering defining gender as a biological condition determined by a person’s gender at birth. The change would basically eliminate federal recognition of 1.4 million Americans who have chosen to identify as a gender other than the one assigned at birth.

That definition could be adopted by Betsy DeVos’s Department of Education, which is reviewing rules on how to deal with complaints of sex discrimination at schools and colleges, the Times reported.

But it runs afoul of settled case law, civil-rights activists say.

For Stryker, the memo crystallized the Trump administration’s actual definitions of sex and gender, about which it had “thrown up a lot of smoke” before, she said. It’s unclear how this would affect higher education. But the proposed changes, Stryker said, would at least create “administrative chaos.”

‘A Lot Less Friendly’

For the past five years or so, a debate has transpired over just who is protected by Title IX, the federal law meant to ensure gender equity on campus, said Scott D. Schneider, a lawyer in Austin, Tex., who specializes in education issues. A central question has been: Does the law protect people on the basis of their gender identity?

Under the Obama administration, that answer was yes, said Schneider, a partner at the law firm Husch Blackwell. In May 2016 the Department of Justice and the Department of Education in the Obama administration issued a “Dear Colleague” letter that said protections under Title IX included transgender students. And under the Obama-era rules, Schneider noted, “there’s no test” to prove that a person is a certain gender.

One of the first things the Trump administration did was rescind those protections. DeVos, the education secretary, said that states and individual school districts should be able to decide for themselves how to handle transgender students.

Many colleges and universities, though, said they would continue to abide by the previous guidelines, Schneider said.

Since then, the Education Department’s ideology has been a “bit of a black hole,” he said.

Piecemeal decisions have surfaced — in June 2017, for example, the department’s Office for Civil Rights told its staff to evaluate complaints from transgender students on a case-by-base basis, The Washington Post reported.

Then, in February, the department confirmed that it is no longer investigating civil-rights complaints from transgender students who are banned from school bathrooms.

So the newly reported memo is “entirely in line with everything they’ve done up to this point,” Schneider said.

Whether the Education Department integrates the new definition into its new regulations — expected to be released this fall — is the issue at hand, he said.

If it does, he said, it seems likely that a transgender student would not have recourse to complain to the federal government about discrimination on the basis of gender identity.

That might not matter as much in states with gender-identity-protection laws on the books, said Natasha Baker, a partner and chair of the higher-education department at Hirschfeld Kraemer, a California law firm. According to the think tank Movement Advanced Project, 20 states and Washington, D.C., explicitly ban discrimination on the basis of sexual orientation and gender identity. Twenty-six states have no such prohibitions in place.

Before now, complaining to the U.S. Department of Education was an option for transgender students in states without those protections, Baker said. But if the rules are changed, she said, “that’s a lot less friendly of a place to go.”

‘A Very Long Game’

The memo also contradicts a clear trend in recent case law regarding transgender rights and Title IX that aligns with Obama-era thinking, said Schneider.

Last year the U.S. Court of Appeals for the Seventh Circuit, in Chicago, upheld a lower court’s ruling that sided with a transgender student in Wisconsin. The student, Ashton Whitaker, had been denied access to the boys’ bathroom at his high school. He had been threatened with disciplinary action, including a proposal that all transgender students wear bright-green wristbands. He filed a lawsuit, Whitaker v. Kenosha Unified School District, asserting that his rights under Title IX had been violated, and he won.

Another case, G.G. v. Gloucester County School Board, is still pending. Gavin Grimm, a transgender boy, filed his original Title IX suit objecting to his high school’s policy on bathroom use. As the case worked through the federal courts, it seemed bound for the U.S. Supreme Court. But the court sent it back down to a lower court after the Trump administration rescinded the Obama-era transgender protections.

Right now there are lots of unknowns, but “we’re getting to the point where enough cases are winding their way through the various appellate courts where at some point, the Supreme Court is going to have to hear this,” Schneider said. And if that happens, he said, it would render moot whatever maneuverings had taken place on the administrative level.

In the meantime, transgender-rights groups are sounding the alarm. Protesters rallied in front of the White House on Monday. Hashtags like #WeWontBeErased are circulating on Twitter. The changes proposed in the memo are a “direct threat to all students’ right to an education free from discrimination and violence,” said Know Your IX, an advocacy group.

“It’s the beginning of a process that we’ve seen happen before,” said Avery Willis, a student at Georgia State University and member of a national gender-nonconforming youth-leadership group. When marginalized groups aren’t recognized, Willis said, their mental health suffers.

On Sunday, Stryker took to Facebook to remind her friends and followers to be resilient. They are playing “a very long game with high stakes,” she said.

Just as Trump changed Obama’s policies, so, too, can we one day change Trump’s, she wrote.

“Live affirmatively,” Stryker wrote. “This struggle will last our lifetimes.”

Emma Pettit is a staff reporter at The Chronicle. Follow her on Twitter @EmmaJanePettit, or email her at emma.pettit@chronicle.com.