Last week I wrote an article about the Trump Administration's controversial developments that target and arguably further marginalize transgender students. In the past year, the administration has steadily rolled back Title IX protections for the demographic. Its boldest move materialized in the form of an announcement made by Education Department spokeswoman, Liz Hill. She confirmed much of what LGBTQ advocates had already suspected: that the department would no longer investigate civil rights complaints involving transgender students and bathroom (and presumably locker room) accommodations. 

“Title IX prohibits discrimination on the basis of sex, not gender identity,” Hill stated. “In the case of bathrooms, however, long-standing regulations provide that separating facilities on the basis of sex is not a form of discrimination prohibited by Title IX.”

Now, in what would be the administration's most drastic effort yet, is the consideration to redefine gender as “biological and immutable.” Obama-era guidance loosened the legal concept of gender in education and healthcare by acknowledging gender as a choice driven by the sex a person identifies with more, rather than the sex assigned at birth. Under the new definition, a person's gender would be tied to the sex organs they possess at birth. A development that LGBTQ advocates say mandates the erasure of transgender people, and has massive implications for federal programs and legislation.

The Department of Health and Human Services released a memo urging other major government agencies - like the Department of Education, Labor agency, and the Justice agency - to establish a clear and uniform definition of gender that is “grounded in science, objective and administrable.” It goes on to say that “any dispute about one's sex would have to be clarified using genetic testing.”

The department also plans to align interpretations of Title IX with this definition. Much to the horror of LGBTQ advocates, such an effort would severely restrict civil rights enforcement by agencies that address transgender discrimination issues.

Although there would be fewer options for adjudication due to the new development, transgender people still have the option to take discrimination cases to court to challenge this definition -- approach advocacy groups promised would come to fruition. But in their memo, health and human services officials claimed that pro-transgender court decisions were made in lieu of a cohesive definition of gender.

If this definition were to be imposed, new considerations would be raised in higher education, one of the most visible domains of the effects of such a decision. New documentation, practices, and policies may have to be adopted to oblige the development.

Nationwide Title IX Advisor

The only way to make sure your voice is heard and your rights are upheld is to retain a student defense attorney. For respondents, especially, the assistance of an attorney advisor is invaluable in the Title IX process. National Title IX attorney Joseph D. Lento has the skill, experience, and expertise to help you preserve your entitled rights under Title IX and your school's policy. For a case evaluation or more information about his representation, contact him online or give him a call at 888-535-3686 today.