Is institutional exclusion discriminatory? Not according to the Trump administration
As Politico covered this morning, big changes could come to schools and school-based athletics programs from an unlikely source, the Department of Energy. The agency issued “direct final rules” that will delete regulations under Title IX, specifically related to protections against sex-based discrimination in sports and education programs. The rules will take effect July 15 unless the public submits “significant adverse comments” by today.
This particular rule is, of course, related to the Trump administration's war on the rights of trans and gender nonconforming people to exist and participate in society. And as advocates have repeatedly pointed out, attacks on trans athletes’ rights to participate in sports are not just hateful and exclusionary in their own right, they’re also a trojan horse for curtailing opportunity and access from which we all benefit. In this instance, students’ opportunities to play non-contact sports could be severely stunted, because the new rule would no longer require schools to either host sex-specific sports teams or to allow students to try out for opposite-sex sports teams. In other words, if a school lacks a girls’ team for a particular sport, the girls in that school will simply not have an opportunity to participate.
What Politico didn’t cover is that the Department of Energy released additional rules that will similarly walk back protections against discrimination in other forms. These rules are extreme. Individuals with disabilities will no longer be protected by things like basic building and infrastructure accessibility rules. Are we really in a climate where wheelchair ramps are controversial? It would seem so.
And under Title VI, the new rules would delete a requirement that federal assistance programs offer information in the language(s) of eligible populations. This practice is a basic access issue, and the Trump admin’s position is that government business and public interaction with the government should only be conducted in English. Basically, linguistic exclusion does not constitute discrimination. If you believe, like the Trump admin does, that inaccessible buildings are not discriminatory, then I suppose this makes sense.
There is a lot more at stake beyond wheelchair ramps and language translations. These are all very politically charged rule changes, and I hope folks can take 5 minutes today to weigh in (links below). Issuing regulations via a direct final rule is not itself a problem, but the process is meant to be reserved for routine or noncontroversial changes. These rules are far from noncontroversial. In the case of building accessibility standards being deleted, the rule dates back to the 1970s and courts have enforced it for decades. Hardly a noncontroversial issue that merits the expedited direct final rule process.
You can view the rules and provide your own comments to the Department of Energy via these links:
Section 504 (disability) Rescinding New Construction Requirements Related to Nondiscrimination in Federally Assisted Programs or Activities
Title VI (race, national origin, language) Rescinding Regulations Related to Nondiscrimination in Federal Assisted Programs of Activities (General Provisions)
Title IX (sex and gender) Nondiscrimination on the Basis of Sex in Sports Programs Arising Out of Federal Financial Assistance and Rescinding Regulations Related to Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance
As Politico reported this morning, advocates see this maneuver by the Department of Energy as a trial balloon for other agencies, which makes public input more important than ever. Within each of the links above, you’ll see a green “submit a public comment” button which leads you to a place to directly type your thoughts and opinions into the form, which you can then submit anonymously. You can simply say you disagree with the rule and why, or that you think the public should be given more opportunities to engage with the agency if it wishes to change long-standing non-discrimination practices. Proper formatting and legal citations are not required! I urge folks to do this for each of the rules, as there is a risk of each of them going into effect next month if they don’t each receive significant adverse comments.
The public should also be aware that the Trump administration and its backers have injected their civil rights agenda wherever they can, including via judicial challenges, as I reported in Teen Vogue earlier this year. If you want to read more on the potential impacts of cutting what are known as Section 504 protections, please take a look!