Michelle H. BasiOn February 22, 2017, the Department of Justice and Department of Education issued a joint letter withdrawing the Dear Colleague Letter issued by the Departments on May 13, 2016, regarding transgender students. That guidance took the position that Title IX of the Education Amendments of 1972 required schools to grant access to sex-segregated facilities, such as restrooms and locker rooms, based on gender identity. The Departments have now withdrawn that guidance, stating that guidance did not contain extensive legal analysis and did not undergo any formal public process. Additionally, the Departments noted that “there must be due regard for the primary role of the States and local school districts in establishing educational policy.” https://www.justice.gov/opa/press-release/file/941551/download
Enforcement of the May 13, 2016 guidance had already been put on hold by the Departments after a federal district court judge in Texas issued an order in August of 2016 blocking the enforcement of the guidance after several states and a school district filed a lawsuit challenging the guidance. On February 10, 2017, the Department of Justice withdrew its appeal of that order. In the meantime, parties in another case, G.G. v. Gloucester County School Board, are scheduled for oral arguments in the Supreme Court on March 28, 2017. The Supreme Court previously agreed to hear Gavin Grimm’s case to address two questions: (1) whether the Justice and Education Departments”™ interpretation of Title IX deserved deference, and (2) whether the prohibition on sex discrimination in schools also applies to gender identity. With the withdrawal of the Departments”™ guidance, the first question is likely moot. However, the Court may still hear the second question.
In the meantime, however, the withdrawal of the guidance does not require any immediate changes in policy or practice by school districts. With the pending Supreme Court case, this area of the law is still 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 G.G. v. Gloucester County School Board, 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.
While there is much uncertainty in this area of law, the basic principles of Title IX are well-established and have not changed. It is clear that all students ““ including transgender students ““ are protected from discrimination, bullying or harassment on the basis of sex. Even in the letter withdrawing the May 13, 2016 guidance, the Departments reiterated 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.