By: Brittany Flaherty Theis
Late yesterday, February 22, 2017, the Department of Education and the Department of Justice (the “Departments”) withdrew the guidance and statements of policy reflected in two guidance documents related to transgender students’ rights. The Departments withdrew their Dear Colleague Letter dated May 13, 2016, and a 2015 letter from Emily Prince from James Ferg-Cadima, Acting Deputy Assistant Secretary for Policy from the Office for Civil Rights at the Department of Education. The guidance documents took the position that Title IX’s protections against discrimination “on the basis of sex” included discrimination based on gender identity and that schools generally must treat transgender students consistent with their gender identity. These documents are at the center of several cases currently being litigated nationwide.
In the new Dear Colleague Letter dated February 22, 2017 withdrawing the prior guidance documents, the Departments state that the initial guidance documents did not contain extensive legal analysis or explain how the position that Title IX extends to discrimination based on gender identity is consistent with the language of Title IX. The Departments were also stated that the guidance documents had not undergone any formal public process. In addition, the Departments expressed the belief that “there must be due regard for the primary role of the States and local school districts in establishing educational policy.”
The U.S. Secretary of Education also released a statement late on February 22, 2017, in which she claims that because the Department of Education had been enjoined from enforcing part of the guidance, there will be no immediate impact to students by rescinding the guidance. She also states that this “is an issue best solved at the state and local levels.”
Notably, the Departments’ rescission of the guidance documents came one day before lawyers for a transgender student who identifies as a boy and wants to use the boys’ bathrooms at his high school in Virginia are due to file their briefs before the United States Supreme Court in Gloucester County School Board v. G.G.. SCOTUS Blog reports that the school board and the student’s attorneys want the Court to decide the case, emphasizing that regardless of what the Departments’ guidance document said or how much weight the Court should give it, the Court also agreed to review the question of whether the school board’s interpretation that students must use bathrooms corresponding to the sex they were assigned at birth is consistent with Title IX and the 1975 regulation interpreting that law. SCOTUS Blog explains that the Court has multiple options, including remand for the 4th Circuit to weigh in given the government’s changed position, or ruling on the question themselves without further input from the 4th Circuit. Oral argument in this case is currently scheduled for March 28, 2017.
Also, numerous cases regarding accommodations for transgender students are pending nationwide, including one in Illinois. On October 18, 2016, a federal magistrate judge issued his report and recommendation that the district court deny the plaintiffs’ motion for a preliminary injunction to block the school district from enforcing its policy allowing transgender students to use bathrooms consistent with their gender identity and an agreement between the Department of Education and the school district allowing a transgender student to use the girls’ locker rooms. (Students and Parents for Privacy v. U.S. Department of Education., No 16-4945 (N.D. Ill. filed May 4, 2016).) The May 13, 2016, Dear Colleague Letter is not directly at issue in this case. No decision on the motion has been issued yet.
Prior News & Knowledge Blog entries on this topic can be found HERE, HERE, and HERE. Whitt Law will continue to closely monitor legal developments in this rapidly developing area of law. Please contact Whitt Law Attorney Brittany Flaherty Theis if you have any questions regarding transgender student accommodations.
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