Rights for LGBT people have been a cause for concern under the Trump administration. And on Tuesday, Department of Education Secretary Betsy DeVos created more uncertainty, to say the least, when she refused to say LGBT students would be protected from discrimination at private schools.
DeVos said several times that schools receiving federal funding must abide by federal laws.
But the law has not always been consistent when it comes to LGBT rights, and protections vary greatly by state. Only 14 states plus D.C. have laws in place that address discrimination against students based on sexual orientation or gender identity. One state, Wisconsin, has a law that protects students based on sexual orientation only. And in regard to school anti-bullying laws, only 20 states plus D.C. have laws that address harassment and/or bullying based on sexual orientation and gender identity.
Democratic Sen. Jeff Merkley of Oregon pressed DeVos to clarify her stance.
“Those laws are somewhat foggy in that area, so I want to be absolutely clear about what you’re saying,” Merkley said. “Are you saying that if you have a private school — because private schools generally set their own admission policies — that they will not be allowed, under your program, to discriminate against LGBTQ students”
DeVos responded by repeating, “Schools that receive federal funds must follow federal law.”
“And I just said that federal law is foggy, so in your understanding of federal law, will such discrimination be allowed”
“On areas where the law is unsettled, this department is not going to be issuing decrees. That is a matter for Congress and the courts to settle,” DeVos said.
“So please just answer the question. Is that discrimination going to be allowed or not allowed, under your understanding”
DeVos continued speaking about “areas where the law is unsettled.”
“What you said earlier didn’t help us, since it’s an area of unsettled law,” Merkley said. “But I think you just said where it’s unsettled, such discrimination will continue to be allowed under your program. If that’s incorrect, please correct it for the record.
“How about discrimination based on religion Will such discrimination be allowed with charter or private schools”
DeVos repeated her response, that “federal law must be followed.”
“You’re refusing to answer the question,” Merkley said. “I think that’s very important for the public to know: that today, the secretary of education, before this committee, refused to affirm that she would put forward a program that would ban discrimination based on LGBTQ status of students or ban discrimination based on religion.”
DeVos previously testified that she would not protect students from discrimination while serving as secretary, saying at the time she would follow state law. Last month at a House Appropriations subcommittee hearing, Democratic Rep. Katherine Clark of Massachusetts grilled DeVos for a more definitive answer.
“Is there a line for you on state flexibility” Clark asked. “You are the backstop for students and the right to access a quality education. “Would you in this case say, ‘We are going to overrule and you cannot discriminate — whether it be on the sexual orientation, race, special needs — in our voucher programs’ Will that be a guarantee from you for our students”
“For states who have programs that allow for parents to make choices, they set up the rules around that,” DeVos responded.
“So that’s a no,” Clark said. “Do you see any circumstance where the federal Department of Education, under your leadership, would say that a school was not qualified [for federal funding] What if they said, ‘We are not accepting African American students,’ but that was okay with the state Does the state trump — do you see any situation where you would step in”
DeVos referred to Title IX protections and talked about “parents making choices.”
“This isn’t about parents making choices. This is about use of federal dollars,” Clark said.
“So if I understand your testimony — I want to make sure I get this right. There’s no situation of discrimination or exclusion that, if a state approved it for its voucher program, that you would step in and say, ‘That’s not how we’re gonna use our federal dollars’ — there’s no situation, if the state approved it, that you would put the state flexibility over our students Is that your testimony”
DeVos again referred to “choices” by parents and suggested that “too many children today are trapped in schools that don’t work for them.”
Transgender students are not legally protected under federal anti-discrimination laws. “States rights” to supersede gender protections.
But the Trump administration has already indiated that members of the LGBT community are not protected under Title IX. In February the administration reversed an Obama-era guidance that instructed public schools to let transgender students use the bathroom that aligns with their gender identity.
The Trump administration said that Obama’s guidance contains no legal basis for its interpretation that Title IX extends to protections of transgender people. According to the administration, the issue should be left up to the states to decide.