María Isabel Rivero
IACHR Press and Communication Office
Tel: +1 (202) 370-9001
Washington, D.C. - The Inter-American Commission on Human Rights (IACHR) expresses its deep concern regarding the letter issued jointly by the U.S. Department of Education and Department of Justice on February 22, 2017, informing schools in the country that receive federal funds that the guidance on transgender students issued in a letter by these same agencies on May 13, 2016, was being withdrawn and rescinded. With this new measure, the government of the United States is withdrawing important federal protections that ensured non-discrimination, inclusion, acceptance, and full recognition of gender identity in the school environment for trans and gender-nonconforming students.
The Commission observes with great concern that the guidance that was rescinded included significant protections so that transgender students would be treated the same as cisgender students at school, in aspects such as immediate recognition of students’ gender identity based on their own assertions, regardless of whether they have identification documents that reflect that identity and without imposing pathologizing restrictions such as medical exams. That guidance also provided for protection from harassment based on gender identity or gender transition; the use of the name and pronoun with which the student identified; access to restrooms and locker rooms consistent with the student’s gender identity; the assurance that a student would not have to use individual-user bathrooms or other facilities when other students were not required to do so, unless the student voluntarily requested this; the possibility of participating in sex-segregated sports activities, classes, and extracurricular activities consistent with the person’s gender identity; and the protection of personally identifiable information in education records, including not allowing the nonconsensual disclosure of a person’s name and sex assigned at birth and making it possible to correct education records to make them consistent with the student’s gender identity. The IACHR underscores that all these provisions were based on the interpretation that the prohibition of sex discrimination contained in Title IX of the Education Amendments of 1972 and its implementing regulations encompasses discrimination based on a student’s gender identity.
The Inter-American Commission observes that the letter informing schools that this guidance was being withdrawn and rescinded does not include replacement provisions or new guidelines. The Commission notes that the letter establishes that the withdrawal of the earlier guidance does not leave students without protections from discrimination, bullying, or harassment, and instructs schools to ensure a safe environment. However, the IACHR notes that the letter does not include specific measures to ensure that there is no regression in the recognition of trans students’ rights in the country.
The Commission has established that gender identity is one of the categories on which discrimination is prohibited; thus, States have the obligation to take the necessary steps to ensure real and effective equality for people whose sex assigned at birth does not correspond to their gender identity. The lack of recognition of gender identity and expression sends a broad message that the rights of people who depart from “traditional” or cisnormative standards do not enjoy equal protection and recognition.
In this regard, the Inter-American Commission reminds the United States that the prohibition of discrimination due to real or perceived gender identity and expression should include, as protected rights, the conduct associated with that identity and should guarantee recognition of gender identity in a way that cuts across every aspect of a person’s life. This includes, among other things, the use of restrooms and other facilities and participation in activities consistent with gender identity in the school environment. The IACHR notes that this State obligation encompasses the possibility of giving everyone the opportunity to freely express themselves toward others, consistent with their gender identity and the right to be recognized based on that identity.
As the IACHR and its Office of the Special Rapporteur for Freedom of Expression have indicated on other occasions, speech that is an element of a person’s identity or personal dignity is especially protected by the right to freedom of expression; therefore, the States have a smaller margin for restricting this type of expression in any way. The Commission has also stated that the right to recognition of gender identity implies, among other things, ensuring that all people are free to express their gender identity in every bodily variation, and to develop in every aspect of their lives in accordance with that identity.
In its 2015 report “Violence against LGBTI Persons in the Americas,” the IACHR noted that LGBT children or those perceived as such face stigma, harassment, bullying, intimidation, and sexual and physical violence at school; that is why it is so important to implement measures to show that school bullying is not tolerated. The Commission stresses the importance of such measures to counter the spread of anti-LGBT feelings among children and teachers, the fostering of bullying and discrimination, and the reinforcement of stigma and feelings of shame and inferiority among LGBT persons.
The IACHR notes with concern that rescinding the protections for trans and gender-nonconforming students in the school environment could lead to an increase in incidents of harassment or bullying, make these students more vulnerable to hostile environments and rejection, and leave room for violence and physical aggression. Moreover, this lack of protection could contribute to higher suicide rates among trans and gender-nonconforming young people due to rejection and lack of acceptance at school. The Commission notes that this situation has been documented by civil society organizations, which have indicated that among respondents to the National Transgender Discrimination Survey in the United States, 41 percent reported having attempted suicide, which in many cases could be motivated by the rejection and harassment they face throughout their lives, including at school.
The Commission welcomes the Connecticut state government’s initiative to issue an executive order strengthening protections afforded to transgender students in public schools in that state. The Commission also applauds recent remarks made by New York Governor Andrew Cuomo about the importance of protecting transgender students from discrimination and harassment at school, and his request to the New York State Education Department to immediately issue a directive to school districts to ensure these protections.
The Inter-American Commission urges the government of the United States to adopt effective federal measures to ensure that trans and gender-nonconforming students can fully participate in the range of school activities consistent with their gender identity without being pathologized, and to ensure that there is no regression in the recognition of their rights, that they are protected against discrimination and harassment, and that they can use the restroom and other facilities consistent with their gender identity.
A principal, autonomous body of the OAS, the IACHR derives its mandate from the OAS Charter and the American Convention on Human Rights. The Inter-American Commission has a mandate to promote respect for human rights in the region and acts as a consultative body to the OAS in this area. The Commission is composed of seven independent members who are elected in an individual capacity by the OAS General Assembly and who do not represent their countries of origin or residence.