In the latest chapter in the saga of evolving legal rights and protections
for transgender students, on Feb. 22, the Departments of Justice and
Education issued a joint “Dear Colleague Letter” that rescinded their prior
guidance on how educational institutions should treat transgender students
with respect to sex-segregated facilities.
Specifically, the letter rescinds two prior guidance documents: (1) a Jan.
7, 2015, letter by James A. Ferg-Cadima, acting deputy assistant secretary
for policy in the Office for Civil Rights (OCR) at the Department of
Education, and (2) a May 13, 2016, “Dear Colleague Letter on Transgender
Students” issued jointly by the Departments of Justice and Education.
Collectively, these documents reflected the departments’ prior position
that federally funded education programs are required by Title IX of the
Education Amendments of 1972 to treat transgender students in a manner
consistent with that student’s gender identity in the context of restrooms,
locker rooms, housing and other sex-segregated facilities.
Opining that the prior guidance documents “do not ... contain extensive
legal analysis or explain how the position is consistent with the express
language of Title IX,” the Feb. 22 letter observes that the departments’
prior position “has given rise to significant litigation regarding school
restrooms and locker rooms,” noting specifically the diverging conclusions
reached by the U.S. Court of Appeals for the Fourth Circuit and the U.S.
District Court for the Northern District of Texas last year. The Fourth
Circuit decision held that a transgender student could maintain a claim
under Title IX against a school district that refused to give him access to
the bathroom that corresponds with his gender identity, and that decision
is currently on appeal to the U.S. Supreme Court. The Texas decision,
conversely, found that the departments’ interpretation of sex as it
pertains to gender identity was not entitled to any deference, and it
enjoined enforcement of the departments’ interpretation on a nationwide
Ultimately, the Feb. 22 letter declares that the departments “have decided
to withdraw and rescind” the prior guidance documents “in order to further
and more completely consider the legal issues involved,” and that they
“will not rely on the views expressed within them.” The Department of
Justice transmitted the letter to the U.S. Supreme Court, acknowledging
that the new guidance will likely impact the Supreme Court’s consideration
of the Fourth Circuit case, Gloucester County School Board v. G.G.
Oral argument in that case is currently set for March 28, 2017. (For
details, see our April 21, 2016, legal alert, “Fourth Circuit Rules that Title IX Extends to Transgender Bathroom
By singling out the Jan. 7, 2015, and May 13, 2016, documents, the Feb. 22
letter appeared focused on repealing the requirement under the Obama
administration that each transgender student be allowed access to the
bathrooms, locker rooms, and other sex-segregated facilities that
correspond with that student’s gender identity. Indeed, the Jan. 7, 2015,
letter was explicitly relied upon by the Fourth Circuit in providing
deference to the Department of Education’s position on that issue.
What is not clear, however, is just how far the Trump administration
intends to go in repealing the prior administration’s guidance on
transgender issues. Notably, the Feb. 22 letter did not mention the
Department of Education’s December 2014
Questions and Answers on Title IX and Single-Sex Elementary and
Secondary Classes and Extracurricular Activities
, which explained that, “[u]nder Title IX, a recipient must treat
transgender students consistent with their gender identity in all aspects
of the planning, implementation, enrollment, operation, and evaluation of
single-sex classes.” Nor did it address OCR’s position in its April 2014 Questions and Answers on Title IX and Sexual Violence that “Title
IX’s sex discrimination prohibition extends to claims of discrimination
based on gender identity or failure to conform to stereotypical notions of
masculinity or femininity and OCR accepts such complaints for
investigation.” Certainly, OCR has been active in its enforcement of
protections for transgender students under Title IX in recent years.
The Feb. 22 letter was careful to note, however, that the withdrawal of
these guidance documents “does not leave students without protections from
discrimination, bullying, or harassment.” The letter reminds schools that
they “must ensure that all students, including LGBT students, are able to
learn and thrive in a safe environment,” and notes that the Department of
Education “will continue its duty under law to hear all claims of
discrimination and will explore every appropriate opportunity to protect
all students and to encourage civility in our classrooms.”
In addition to monitoring and seeking to understand the implications of the
evolving federal agency position, education institutions addressing issues
related to transgender students must also carefully consider relevant court
opinions, state and local laws, and a variety of practical considerations.
The removal, without replacement, of the previous federal mandates on these
issues raises new questions and significantly impacts the analysis of the
correct approach for each education institution.
The members of McGuireWoods’
labor and employment teams listed below are experienced in this area and available to assist
schools seeking to do the right thing for all of their students while also
minimizing related legal risks.