On February 22, 2017, the U.S. Department of Education and the Department of Justice issued a letter withdrawing joint guidance previously issued by the Departments regarding transgender students in public schools. Less than a year ago, the Departments, under the Obama Administration, issued a Dear Colleague Letter taking the position that Title IX’s prohibition on discrimination “on the basis of sex” requires schools to permit a transgender student access to sex-segregated restroom and locker room facility consistent with the student’s gender identity.
The Departments, now under the Trump Administration, state that the prior guidance does not contain “extensive legal analysis or explain how the position is consistent with the express language of Title IX, nor did they undergo any formal public process.” The Departments also noted that there has been significant litigation regarding appropriate school restroom and locker room access yielding contradictory decisions. Accordingly, the Departments have withdrawn and rescinded the prior Dear Colleague Letter “in order to further and more completely consider the legal issues involved.”
The Departments emphasized the primary role of the States and local school districts in establishing the appropriate policies for their schools. In addition, the Departments reminded schools that this guidance does not affect the general protections from discrimination, bullying, or harassment, and that these protections will continue to be enforced by the Departments under Title IX and other federal laws.
Although not mentioned in last week’s guidance, the case of G.G. v. Gloucester County School Board is currently scheduled for oral argument before the U.S. Supreme Court regarding a Virginia school’s refusal to allow a transgender male student to use the boys’ restroom. The appellate court’s decision that the student should be allowed to use the boys’ facilities was prefaced primarily upon the Department’s Dear Colleague Letter’s policy. Because that federal guidance document is no longer applicable, the Supreme Court has asked each party to present arguments about whether the case should go forward. The justices will either refuse to hear the case entirely, and send it back down to the appellate court to issue a decision not considering the prior Dear Colleague Letter, or hear the case and make their own determination.
The impact of this withdrawal is that local school districts may establish the policies they believe to be appropriate for their districts and for the students involved, as was the case prior to the May 2016 Dear Colleague Letter, but it will not immunize schools from litigation brought by transgender students or members of the community.