DeVos Decrypted: What Last Week’s Education Announcement Means for Trans Students
by Harper Jean Tobin
Last Thursday, Secretary of Education Betsy DeVos gave a speech at George Mason University’s Antonin Scalia Law School announcing a change to the Department of Education’s stance on school responses to sexual violence. As she spoke, groups including NCTE and End Rape on Campus protested outside.
The Secretary’s speech came after she and other Trump administration officials held weeks of conversations with extreme “men’s rights activists” and college administrators. Officials also held a token meeting with student survivors of campus sexual violence, and with organizations that advocate for them — including NCTE. At that meeting, NCTE joined survivors, including LGBTQ survivors, in urging Secretary DeVos to go on a national listening tour to hear from survivors of campus sexual assault and truly understand what they need — an invitation she has apparently declined.
What did Secretary DeVos just announce about Title IX and sexual assault?
Secretary DeVos declared her intention to withdraw and replace established Department of Education guidance from 2011 and 2014, which outlines Title IX law and best practice recommendations on responding to sexual violence in schools. The reason? Because it was unfair to students alleged to have engaged in sexual violence or harassment against their peers. This is yet another misguided move by the most narrowly confirmed cabinet secretary in U.S. history.
How does this affect transgender students?
The Department of Education’s big step backward on sexual violence sends a terrible message to survivors, their peers and school administrators — and could make it harder to hold schools accountable when survivors are mistreated.
According to NCTE’s 2015 U.S. Transgender Survey, 47 percent of transgender adults have experienced sexual assault at some point in their lives. Transgender survivors often face hostility related to their gender identity when reporting sexual violence or harassment.
Like other student survivors, trans students who experience sexual assault need their schools to take action to protect and enforce them, whether or not they choose to report to police. In fact, according to the USTS, 57 percent of transgender adults would be somewhat or very uncomfortable calling police for help in any situation. Because transgender students are more likely to face sexual violence and face even greater barriers to reporting it, the Department of Education’s move amounts to another attack on an already vulnerable group of students.
In another, more technical way, rolling back guidance on sexual violence also further erodes the Department’s previous recognition that Title IX covers gender identity discrimination. While guidance withdrawn in February outlined specific rights of trans students, the 2014 sexual assault guidance incorporated the general statement that discrimination against trans students is prohibited. Removing the 2014 guidance takes the Department of Education one step closer to completely rejecting any federal protections for trans students.
What does this mean for students’ rights?
The Trump Administration is encouraging schools to go back to the days when survivors were routinely shamed, blamed, abandoned, or simply ignored. But while the administration can promote discrimination, it can’t change the Title IX law, which continues to provide strong protections for survivors, including trans survivors.
Similar to the Trump Administration’s withdrawal of lifesaving guidance supporting transgender students in February, this move by the Department of Education is confusing, harmful and wrong, but it doesn’t change existing Title IX protections. If survivors face discrimination from their schools or universities, they may now have far less confidence that the Department of Education will help them. But they still have the law on their side and can find a lawyer and go to court, if necessary. Visit NCTE’s Know Your Rights page for more information.
How is Secretary DeVos justifying this callous move?
As others have pointed out, Secretary DeVos’s speech was filled with false or misleading statements and false equivalencies to justify a retreat from defending survivors.
Here are just some of the justifications DeVos put forth:
- She repeatedly implied that schools are too readily believing students who report sexual violence or harassment, and that this is a problem as grave and pervasive as sexual violence itself — so grave that it demands a major change in federal policy.
- She wrongly claimed that the Title IX guidance included burdensome requirements not based in law. In fact, the guidance paired explanations of established law with recommended best practices for ensuring fair treatment for all students. Title IX law requires that when schools learn of incidents of sexual violence and sexual harassment they must respond to it and must do so in a nondiscriminatory manner.
- She wrongly claimed that Title IX guidance did not provide a fair process for students accused of sexual assault. DeVos’s claims that the guidance ignored due process are flat wrong. The 2011 and 2014 guidance clearly lay out the requirements of a fair process, including providing all parties with equal notice of proceedings, access to the record, and opportunity to present information. The guidance reflected fair process requirements under federal law and recommended that schools go even further than the law requires in making policies and processes fair for everyone. If schools are not providing a fair process, the answer is to enforce Title IX, not roll it back.
- She wrongly blamed Title IX guidance for stories of schools treating accused students unfairly, even though the guidance itself urges schools to treat all students fairly. If schools are treating any student unfairly, the solution is to hold those schools accountable, not to roll back protections for survivors. The Department itself, under the Obama administration, did just that when it found in 2016 that Wesley College had violated Title IX by denying an accused student the opportunity to defend himself.
- She wrongly claimed that Title IX guidance was a failure because hundreds of student survivors filed discrimination complaints with the Department. This is exactly backwards. The complaints received by the Department reflected the well-established fact that sexual violence remains all too common in schools and on campuses, and that survivors felt increasingly empowered to assert their rights.
- She wrongly argued that schools shouldn’t investigate sexual assault and these cases belong only in the criminal justice system. There are reasons why most survivors of sexual violence don’t report to police. Just as importantly, there are many steps schools can and should take to support survivors that only schools can do — like changing class schedules or limiting participation in campus events — that are fair less harsh than prosecution.
- She claimed Title IX guidance caused schools to classifying too many things as “sexual harassment” — even though guidance has long required that legal claims of harassment be “severe or pervasive.” This is, of course, the same false claim made about protecting transgender students from discrimination: that it will lead to sweeping “speech codes” and “witch hunts.”
- She wrongly claimed that Title IX guidance was so complicated “even lawyers couldn’t understand it.” As Title IX advocates immediately pointed out, many school officials and even high school and college students understood the guidance just fine — but the extreme “men’s rights” activists the Department is listening to just didn’t like what the guidance said.
What happens now? What can we do about it?
First, remember that the law hasn’t changed. Transgender students, and any survivor who faces discrimination by their school, can assert their rights under Title IX. The Trump administration’s move means some schools are more likely to do the wrong thing, and more students will have to go to federal court to protect their rights. If you have faced any kind of discrimination in school, visit our Know Your Rights resource or reach out for legal help.
Second, call out the Department of Education on their actions. Before last week’s announcement, the Department was already in a public comment period regarding possible changes to Department regulations and guidance. That comment period was still underway — and rought a deluge of public comments supporting established Title IX guidance — when DeVos made her announcement. We urge you to speak up and add your voice to this public comment period, which ends September 20. The Department will also have another public comment period sometime in the coming months.
NCTE also calls on Congress to hold the Department of Education accountable for enforcing the law and protecting all students. Secretary DeVos should be called to answer questions from lawmakers about her actions.
Finally, students and alumni must hold schools and universities accountable for doing the right thing, no matter what the Trump administration says. Learn more about what you can do from our colleagues at Know Your IX.
Harper Jean Tobin is Director of Policy at NCTE.