Back in August, we reported on Betsy DeVos’s Department of Education choosing to fast-track a Title IX complaint against the state of Connecticut’s policy allowing transgender athletes to compete according to their gender identities. The public was only able to find out about this story thanks to leaked DOE emails that were obtained by the Washington Blade.
A month after the report was published, the DOE identified civil rights lawyer Dwayne Bensing as the whistleblower who sent those emails to The Blade. Then they were faced with a decision about their path forward.
Now that they were exposed, DOE investigators could theoretically stop fast-tracking the complaint, letting federal procedures take place the way they were intended. Or they could seek revenge on the whistleblower.
Since this is 2020, you no doubt have already guessed where this is headed.
In December, Bensing was fired from his position at the DOE. And he has responded by filing a complaint with the Office of Special Counsel, stating that the Department of Education violated the Whistleblower Protection Act by dismissing him.
As the Huffington Post’s Rebecca Klein reported, Bensing originally received a letter of termination from Deputy Assistant Secretary of Education Randolph E. Wills. It states: “Your duties require that you regularly handle sensitive, deliberate information that may also contain personally identifiable information. As a result of your unauthorized release of this information, I have lost trust in your judgment and ability to perform your assigned duties.”
Translation: against the wishes of the DOE, Bensing actually exercised his judgment. And thus was unable to perform his assigned duties of “letting the Department stigmatize and attack trans kids.”
Wills’s letter further upbraided Bensing, claiming that his “failure to express any remorse leads me to believe you lack the potential for rehabilitation.” You have to wonder if departmental policy required Bensing to check his soul at the headquarters door, something that would made his “rehabilitation” impossible.
It should also be no surprise that the DOE’s decision to speed up the Title IX complaint might not have been legal. Klein’s report on the situation mentions that the emails that Bensing leaked “included internal communication, indicating that attorneys were unsure of the legal theory for taking up the investigation even as they were initiating it. The emails also indicated that the head of the civil rights office, Ken Marcus, pressured employees to expedite the investigation.”
So to sum up: the Department of Education was fast-tracking a policy aimed at hurting a marginalized community on what can at best be described as extremely shaky legal grounds. And the one who ended up getting punished for all of this was the lawyer who notified the public about it.
These events further emphasize just how serious this predicament is for the trans community. DeVos and the Department of Education have shown that they’re willing to fudge the legal standards surrounding their investigation of the Title IX complaint if it gets them closer to their preferred result. And as Bensing could attest, anyone who got in their way would be dealt with severely.
In the end, the ones who could face the harshest consequences are young trans athletes in Connecticut and throughout the country. As Bensing spelled it out for HuffPost, “They care more about harming students than they do about protecting career civil servants.”
Bensing resigned his position with the DOE three days after receiving notification of his impending termination. He is currently working as an attorney with the ACLU of Delaware. At least with his current position, the only contact he’ll have with DeVos is when he sees her in court.