Michelle H. BasiThe United States Supreme Court will no longer hear argument on the case regarding transgender students, which was previously set to be heard on March 28, 2017. On March 6, 2017, the Supreme Court issued an Order vacating the Fourth Circuit’s prior decision in G.G. v. Gloucester County School Board and remanding the case back to the Circuit Court for further consideration. The Order follows the February 22, 2017, joint letter from the Department of Justice and the Department of Education withdrawing the Dear Colleague Letter issued by the Departments on May 13, 2016, which provided guidance clarifying protections for transgendered students. The previous guidance, issued during the Obama administration, took the position that Title IX of the Education Amendments of 1972 required schools to grant access to sex-segregated facilities, including restrooms and locker rooms, based on gender identity. The Departments stated in their joint letter that the previous guidance from the Obama administration was withdrawn because it did not contain extensive legal analysis and did not undergo the required formal public notice and comment process. The joint letter also emphasized the importance of states”™ rights in educational policy.
The Supreme Court’s Order directs the Fourth Circuit to consider the Departments”™ withdrawal of the guidance upon remand. The Fourth Circuit had previously relied on the guidance from the Obama administration when it sided with the transgender student’s claim that he should be able to use the bathroom that conforms with his gender identity rather than biological sex. Given the Department’s revocation of this guidance, the Fourth Circuit’s rationale is called into question. Both the student and the school board asked the Supreme Court to move forward with hearing the case. However, the Supreme Court decided the change in guidance was enough of a shift to require the Circuit Court to reconsider its reasoning. The Circuit Court must now consider whether the transgender student is entitled to use the bathroom that conforms with his gender identity based on existing federal and state laws, including Title IX.
Although the withdrawal of guidance leaves many questions unanswered, it does not require any immediate changes in policy or practice by school districts. With no guidance from the Supreme Court and a split among the states, this area of the law remains unsettled. Currently, there is no clear entitlement of students to use sex-segregated facilities consistent with their gender identity, but there is also no clear prohibition against such use. Thus, schools can continue to deal with the issue of access to restrooms and/or locker rooms on a case-by-case basis. In the meantime, we will continue to closely monitor pending court cases, including the Fourth Circuit’s review of G.G. v. Gloucester County School Board on remand, as well as possible state legislation, including Missouri S.B. 98, which proposes that students be required to use facilities consistent with biological sex or be provided alternative accommodations, which are not to include facilities designated for use by students of the opposite biological sex. Alternatively, 14 other states have enacted explicit protections for transgender students into state law, and several others have proposed similar legislation.
While there is much uncertainty in this area of law, the basic principles of Title IX are well-established and have not changed with the Supreme Court’s decision not to reach a decision in G.G. v. Gloucester County School Board. It is clear that all students ““ including transgender students ““ are protected from discrimination, bullying or harassment on the basis of sex. The Departments noted the continued prohibition of discrimination in their February 22, 2017, joint letter, stating that “schools must ensure that all students, including LGBT students, are able to learn and thrive in a safe environment.” Thus, it is important for all schools to continue to promote a safe and positive learning environment for all students, including promptly and effectively addressing any complaints of discrimination, bullying or harassment.