Former Secretary of Education Betsy DeVos leaves behind a legacy of attacks on LGBTQ equality.

Betsy DeVos, who served as secretary of education for nearly the entirety of the Trump administration, submitted her resignation on Thursday, Jan. 7, citing as her reason the violent attack on the U.S. Capitol by supporters of Donald Trump and his rhetoric helping to incite it.

The Department of Education added to her legacy of attacks on transgender equality in U.S. schools on Friday, the day her resignation took effect, releasing an internal memo that said the definition of sex-based discrimination in Title IX, which bars such discrimination in educational institutions that receive federal funding, does not apply to transgender people.

The policy was reflective of much of the education department's transphobic agenda during DeVos' time as education secretary.

Reed Rubinstein, the Department of Education's principal deputy general counsel, sent a memo to the department's acting assistant secretary for civil rights, Kimberley Richey, saying that "the Department's longstanding construction of the term 'sex' in Title IX to mean biological sex, male or female, is the only construction consistent with the ordinary public meaning of 'sex' at the time of Title IX’s enactment. ... Consequently, based on controlling authorities, we must give effect to the ordinary public meaning at the time of enactment and construe the term 'sex' in Title IX to mean biological sex, male or female. Congress has the authority to rewrite Title IX and redefine its terms at any time. To date, however, Congress has chosen not to do so."

Although two federal appeals courts disagreed with the department's contention that Title IX doesn't protect transgender students, Rubinstein said it remains "unpersuaded" by their rulings.

The memo shows that in the final weeks of the Trump administration, the agency continues to reject the Supreme Court's ruling in Bostock v. Clayton County that LGBTQ people are protected under Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination. Although Bostock concerned workers, experts on its protections say that the decision could have broader ramifications, including for education policy.

Title IX's language is "closely modeled" on Title VII's language and "courts regularly look to case law around Title VII for how to define the scope of sex discrimination" under Title IX, said Sharita Gruberg, senior director of the LGBTQ Research and Communications Project at the Center for American Progress.

In August, the Education Department's Office for Civil Rights published two letters signed by Richey that acknowledged the Bostock ruling would affect how the department responded to complaints. The department said that it would investigate a complaint about discrimination based on sexual orientation, but that schools that have policies that are inclusive of transgender students are breaking the law.

Last year, the agency also welcomed an anti-LGBTQ activist, Sarah Perry, to its diversity and inclusion council and told three Connecticut school districts that they wouldn't receive federal grants if they decided to keep their sports inclusive of trans athletes.

In 2017, the department, along with the Department of Justice, rescinded Obama-era guidance on protections for transgender students in schools.

In 2018, the agency told BuzzFeed News that it wouldn't investigate complaints involving transgender students who were not allowed to use the bathroom or locker room corresponding to their gender. The department said, "Title IX prohibits discrimination on the basis of sex, not gender identity." Despite federal court rulings that advance transgender equality, the department has refused to change its position.

The Department of Education largely opposed the protection of LGBTQ students' rights in general, according to a 2019 report released by the Center for American Progress. The report stated that complaints of discrimination related to sexual orientation and gender identification were "nine times less likely to result in corrective action than they were under the Obama administration. Only 2.4 percent of LGBTQ-related complaints resulted in an agreement with the school or some other action to correct for the alleged discrimination against the student—compared with 22.4 percent under the previous administration."

DeVos has acknowledged that she knows how her department's policies can affect transgender youth. During a House Education Committee hearing in 2019, Rep. Suzanne Bonamici (D-OR), asked DeVos, "Did you know, when you rolled back the guidance, that the stress of harassment and discrimination can lead to lower attendance and grades as well as depression for transgender students?"

She said, "I do know that" and added, "But I will say again that [the Office of Civil Rights] is committed to ensuring all students have access to their education free from discrimination."

When Bonamici asked her if she knew about the high rates of attempted suicide among transgender young people, she answered, "I am aware of that data."

But DeVos' awareness of the harm done to transgender students has not led her to change her department's attacks on their rights.

The memo, which the administration of Joe Biden will be able to withdraw and replace once Biden takes office, is the latest in a series of anti-LGBTQ policies advanced by the Trump administration at the last minute.

In December, the Justice Department moved to finalize a rule allowing the department essentially to ease regulations concerning less-blatant kinds of discrimination.

On Thursday, the Department of Health and Human Services finalized a regulation that removed protections against discrimination by organizations that receive federal grants.

In its final weeks, the administration has reversed Obama-era measures that prohibit discrimination against some LGBTQ workers and against discrimination in social services receiving federal funding. It also instituted new rules that make it harder for people to receive asylum in the United States.

Virginia’s housing crisis is spinning out of control. And thanks to discrimination, it’s affecting members of the LGBTQ community, especially transgender people, at a higher rate than others. And to make a bad situation worse, shelters are more likely to discriminate against trans people.

The Richmond City Council is trying to put a stop to that. 

On Jan. 7, the Education and Human Services Committee pushed along a resolution that would add protections for trans Virginians at a time where more people are facing housing insecurity.  During a virtual meeting, the committee recommended that the City Council approve the bill by their next meeting.

“This resolution explicitly states the city’s support of the Virginia Values Act,” said Maggie Anderson, Richmond Mayor Levar Stoney’s LGBTQ liaison.

Resolution 2020-R072 would put in place stronger protections for trans people staying in the city’s shelters. This resolution is a direct response to the letter that Stoney’s office received from many LGBTQ organizations in the area. 

In Oct., 16 organizations, including Equality Virginia and Diversity Richmond, wrote a letter demanding that officials pay attention the discrimination happening in Richmond’s shelters. Discrimination that had gotten so bad that, according to the letter, transgender people were sleeping in their cars or other places not fit for human habitation out of fear.

“This historic lack of trans-affirming service provision is deeply disturbing and requires the Richmond City Council and Mayor’s Office to hold shelters, and the broader Continuum of Care for Homeless Services, accountable for their actions,” said the letter.

Discrimination Leads to Housing Insecurity

Trans people, especially if they’re Black and brown, are more likely to face both housing and job discrimination, making them more susceptible to housing insecurity. And of those facing housing insecurity, they’re more likely to not stay in a shelter. Because of this discrimination, they’re more likely to stay in places not fit for someone to sleep like a park, abandoned building or sidewalk.

“Homelessness is a critical issue for transgender people,” said Jennifer Gallienne with Virginia League for Planned Parenthood. “One in five transgender individuals have experienced homelessness at some point in their lives.”

According to the National Alliance to End Homelessness, the number of adult transgender individuals experiencing homelessness increased 88% since 2016. And, the number experiencing unsheltered homelessness is even higher, increasing 113% during the same period. Currently, the amount of unsheltered trans people is 63%. This is 14% higher than their cisgendered counterparts.

And not having access to a shelter leaves them vulnerable to a multitude of risks. According to the NAEH, a transgender person’s risk of chronic illness jumps from 3% to 38% if they’re unsheltered. And their risk of mental illness is even higher, increasing from 16% to 50%.

“There’s strong evidence that characterizes housing’s relationship to health,” said Gallienne. “Housing stability, quality, safety and affordability all affect health outcomes.” However, in order for transpeople to stay in these shelters, they have to feel safe. And right now, these shelters are far from it.

Transgender People Face Discrimination

During the meeting, Bill Harrison, executive director of Diversity Richmond, recounted a story of an unsheltered trans woman he’d met through their program. She was about 60 years old and was living on the streets out of sheer desperation for several months. Her family had kicked her out of their home.

After reaching out to her, Harrison said she’d became very emotional, asking them to not make her stay in a shelter.

“She’d tried to use the shelters twice,” said Harrison. “But both times she was told she’d have to sleep in the quarters with the men. And both those times she was told to stay in the men’s quarter, she slept on the street.”

Eventually, Harrison ended up checking her into a hotel room.

Unfortunately, this practice is not uncommon. Ted Lewis, the Executive Director of the organization Side by Side, works with LGBTQ youth between the ages 18-25. And the vast majority of the people they see are either trans or non-binary, as well as a racial minority.

“Transgender and non-binary youth face unique challenges accessing care for several reasons,” said Lewis. “Including that they’re often dead named or misgendered by shelter staff. They fear that their gender will not be affirmed, especially in gender segregated shelters. And non-binary youth are often completely left out of gender segregated options.”

Lewis also explained that often trans and non-binary youth also worry about violence against them. Not only from others seeking shelter, but from the shelter’s staff. And data shows that trans and nonbinary people face violence at an incredibly high rate. Unfortunately most of this violence is undocumented.

Adding New Trans Affirming Protections

Gov. Northam signed the Virginia Values Act in April 2020, having it go into effect in July the same year. The Act includes gender and sexuality to the list of protected identities under the Virginia Human Rights Act. Advocates hope that this resolution will add an extra oomph behind the protections guaranteed in the Values Act.

“This resolution is an important step forward in implementing the Virginia Values Act and providing shelters with the guidance that they’re eager for,” said Vee Lamneck, the executive director of Equality Virginia. “It’s especially important that institutions funded by taxpayer money serve our most vulnerable communities competently and equitably.”

If the council passes the bill, shelters in Richmond will have to appropriately train their staff to treat trans people with dignity and respect. This includes using their name and their pronouns correctly and consistently, as well as conflict resolution training. Shelters will also have to create a non-discrimination policy that addresses sexual orientation and gender identity.

“There needs to be adequate training for staff at the shelters,” said Harrison. “The folks I’ve talked to at the shelters want to do the right thing. But they need the training.”

If a shelter fails to complete these steps, it would be a direct violation of the Virginia Values Act. Violating this act carries a pretty hefty price tag. You could end up paying a $50,000 civil penalty as a first time offender. Repeat offenders have to pay $100,000 penalty for each violation.

 What Comes Next? 

The committee will hear more about this bill on Jan. 11. The city council website will be streaming the meeting live at 2 p.m. next Monday. But, in the meantime, if you or someone you know is facing housing insecurity, reach out to the Transgender Assistance Program of Virginia. They offer resources that cater specifically to trans people facing homelessness.

A funeral service was held today for Courtney “Eshay” Key, a transgender woman who was shot and killed in East Chatham on Christmas Day.

Family and friends gathered at a church in south suburban Dolton for a memorial honoring Key’s life.

Around 8:35 pm. Christmas Day night, police found Key’s body on the south side of 82nd Street near Drexel Avenue. At first, Key was believed to be the victim of a hit-and-run crash. But police later found she had suffered gunshot wounds. She was pronounced dead at the scene.

 

Police listed her as a male John Doe, but her family has said she was misgendered, and believe she was the victim of a hate crime.

“I believe Eshay was targeted,” lifelong friend Beverly Ross said earlier this week. “We need to get to the bottom of this because Black trans lives matter. We are not going anywhere.”

Key, 25, was described by family and friends as the life of the party – hilarious and determined.

“She wanted to be something,” Ross said. “She wanted to beat the odds.”

Family and friends also have a problem with how Key has been described elsewhere.

“We are human. We are real,” Ross said. “We’re tired of Chicago police misgendering trans people; gender non-conforming people.”

A trans woman, Key has been identified as both a man and a John Doe.

“They’re dehumanizing our character,” Ross said.

We asked Chicago Police earlier this week about that and we were told, again, the victim is listed as a male. We were also told Area Two detectives are still investigating the homicide. Police have not yet made any arrests.

Megan Rapinoe, Billie Jean King, and 174 other female athletes signed an amicus brief in support of transgender girls and women playing sports as their gender identity.

“As women and LGBTQ+ athletes,” says their brief, they “submit that all youth deserve an equal opportunity to participate in sports alongside their peers. Such equal opportunity benefits the entire sports community.”

The brief was filed in Hecox v. Little, a lawsuit brought against the state of Idaho, which passed a law this year banning transgender girls and women from competing in school sports as girls and women.

The law also allows for a female student-athlete’s gender to be “challenged” and requires the athlete to undergo medical exams to “prove” it. A doctor, the law says, will have to examine the athlete’s genitalia, hormones, and DNA and make a determination of their gender, something that Democrats pointed out is not recommended by the American Academy of Pediatrics.

Boise State University athlete Lindsay Hecox, who is transgender, and the ACLU filed a federal lawsuit against Idaho Gov. Brad Little (R) to overturn the law.

And now she’s getting help from some of the most famous women in sports in the country.

Megan Rapinoe – who led the U.S. Soccer Women’s National team to victory at the 2019 Women’s World Cup in France and who was also Sports Illustrated‘s 2019 Sportsperson of the Year – signed the amicus brief filed in the case, along with tennis legend Billie Jean King, the winner of 39 Grand Slam titles in her career and the recipient of the Presidential Medal of Freedom in 2009.

The women “believe that every young person, and especially youth who are transgender, or intersex, should be able to participate fully in sport alongside their peers and gain the benefits that sports participation brings,” according to the brief.

“There is no place in any sport for discrimination of any kind. I am proud to support all transgender athletes who simply want the access and opportunity to compete in the sport they love,” wrote Billie Jean King. “The global athletic community grows stronger when we welcome and champion all athletes – including LGBTQI+ athletes.”

The brief stresses the value of sports, especially for students, when it comes to learning teamwork, managing stress, feeling acceptance and camaraderie, and getting experience with leadership.

“I was grateful that when I came out as a lesbian, I didn’t have to step away from the sport I loved,” said U.S. Women’s National Soccer team member and amicus brief signer Lori Lindsey. “I gained the tremendous gift of being fully myself and showing other LGBTQ+ athletes that there’s a place for them in sports.”

The brief also calls out the Idaho bill for its “invasive and medically unnecessary testing” if a girl’s or woman’s gender is challenged by a competitor.

“This law flies in the face of bedrock principles of equality and diversity in sports,” the brief says.

The Trump administration has also filed a brief in the case, defending the Idaho law by saying that it protects cisgender people from transgender athletes.

Joe Biden has promised to strike down President Trump’s ban on trans people serving openly in the military “on day one” of his presidency, reinstating the principle of open service he and then-President Obama instituted in 2016. Trans people already serving and those wanting to enlist are excitedly anticipating the policy change.

Kaz Lewis, 23, graduated from West Point in June, and is hoping to become an engineer in the army. He decided not to get a diagnosis of gender dysphoria as it would have prevented him from getting commissioned. “I am out to people, but I can’t do anything at all to formally, medically transition, until anything changes,” Lewis told The Daily Beast.

“It’s irritating because I want to live authentically and also serve. It’s walking a fine line, of how long I am willing to wait. Biden winning the election was a relief. It means something will change in the next couple of months. It’s something I can look forward to. I can get on with serving as my true self.”

Paulo Batista, 36, from San Diego, is looking to join the navy. “The way it works now, I would be automatically disqualified if I went through the medical now, or go for a medical waiver to state why my surgeries would not cause an issue to me enlisting.” Batista told The Daily Beast that in recent times the waiver process had seemed log-jammed, “there were lawsuits pending all over, and no responses from the Pentagon, so I would rather not go through that right now. I wanted to see what would happen in the election.”

“It’s simple: every American who is qualified to serve, should be able to—and we should all be grateful for their service and courage,” Biden told Dallas Voice in February. “President Trump’s transgender military ban reversed the June 2016 Obama-Biden Administration policy explicitly allowing transgender people to serve openly in the military. On day one of my presidency, I will direct the Department of Defense to allow transgender service members to serve openly and free from discrimination. I know that this is not just the right thing to do, but it’s in our national interest.”

A spokesperson for the Biden transition team told The Daily Beast that he had pledged to repeal the ban at the outset of the administration. It is understood that, just as the policy was introduced by an executive action, Biden will likely strike it down using the same mechanism.

Biden’s campaign website makes clear Biden’s intention to reverse the transgender military ban, which is “discriminatory and detrimental to our national security. Every American who is qualified to serve in our military should be able to do so—regardless of sexual orientation or gender identity and without having to hide who they are. Biden will direct the U.S. Department of Defense to allow transgender service members to serve openly, receive needed medical treatment, and be free from discrimination.”

The Trump ban, said Lewis, “unnecessarily prevented people from serving. I’m just as competent a leader and soldier as the guy sitting next to me. I don’t know why there should be a ban, or any form of discrimination. Trans people serve in the same way as everyone else.”

Lewis said his colleagues have been “generally accepting. Most of the people I interact with on a day-to-day basis are very much, ‘Hey, you be my battle buddy, I’ll be your battle buddy.’ It’s really cool. It’s a non-issue to people on an individual basis.”

Biden’s victory had brought Batista “tears of joy when we have been fighting for so long. I am so excited. I didn’t think Trump would go this far. Once Biden reverses the ban by executive order, I think the policy change should take around 30 days.”

“What we want is coming. We just can’t predict when it is going to be.”

Lt. Col. Bree Fram, an active duty astronautical engineer in the U.S. Air Force and a spokesperson for the trans military advocacy organization Spart*a, said the group had “every confidence” the Biden administration would issue an executive order to reverse the trans ban.

“He has said it himself multiple times, and we have no reason to doubt that commitment and that commitment happening very quickly,” Fram said, adding the organization could not comment on whether Biden or any members of his transition team had been in communication with the organization, and if they had, what the substance of those discussions had been.

“That kind of work is done behind the scenes,” Fram said. “We are very confident they will take action, and we will hopefully have a seat at the table to improve things once they do.”

While it was impossible to give an exact timeline of change, Fram said Spart*a was telling its members: “What we want is coming. We just can’t predict when it is going to be.” The group’s members are “very excited,” she added.

As The Daily Beast previously reported, until now there has been a group of out-transgender individuals exempt from the ban and able to continue serving and receive medical treatment. Fram is part of this group—estimated at around 1,600 people, all with diagnoses of gender dysphoria predating the ban—having come out as trans in 2016, when the ban on transgender service was first lifted.

A second, much larger group of trans people serving has been non-exempt from the ban, and did not receive a diagnosis of gender dysphoria before the policy went into place. They have been forced to serve in their sex assigned at birth and are not able to access medical care or receive gender-affirming surgery. Spart*a says this group numbers anywhere between 2,000 and 13,000 troops. A more accurate figure is impossible to deduce, because the Department of Defense does not keep such data.

 

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