Rescinded Guidance on Transgender Students’ Access to Sex-Segregated Facilities Raises Questions for Educators

February 24, 2017

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transgender students, on Feb. 22, the Departments of Justice and Education issued a joint “Dear Colleague Letter” that rescinded their prior guidance on how educational institutions should treat transgender students with respect to sex-segregated facilities.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 basis.

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 Access.”)

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’ education and 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.