On February 22, 2017, the Trump Administration, through the Departments of Education and Justice (the “Agencies”), rescinded guidance issued by his predecessor concerning the rights of transgender students. The Dear Colleague Letter withdrew prior guidance letters issued by the Agencies in January of 2015 and May of 2016. Both of the withdrawn letters provided directives to school districts concerning the Agencies’ position that Title IX protections extend to transgender students.
It is the Trump Administration’s position that the prior guidance did not: (1) contain extensive legal analysis; (2) explain how the position is consistent with the express language of Title IX; or (3) undergo any public process.
SCOTUS To Hear GG Case in March
The most recent guidance letter highlights the amount of litigation that is pending as a result of the prior guidance and opined that it is up to the states and local school districts to establish educational policies regarding the rights of transgender students. The leading case concerning transgender rights, Gloucester County School Board v. GG, is scheduled for oral argument in the United States Supreme Court on March 28, 2017.
In Gloucester, the U.S. Court of Appeals for the 4th Circuit relied upon the guidance issued by the Agencies in school districts in Virginia to allow transgender student s to use the restroom which corresponded with their gender identity. Both parties in the GG case are requesting that the Supreme Court decide the issue independent upon the Agencies’ interpretation of Title IX.
The Trump Administration makes it clear that all schools must ensure that all students, including LGBT students, are able to learn and thrive in a safe environment. It further notes that the Office of Civil Rights will continue to hear all claims of discrimination and will explore every appropriate opportunity to protect all students in their classrooms.
Many school administrators have weighed in on the issue and have indicated that the repeal of the prior guidance does not affect the way they address issues involving transgender students. It is important to keep in mind that even though the Department of Education and the Office of Civil Rights can no longer impose regulations concerning the rights of transgender students, this does not preclude individuals from initiating private lawsuits against school districts alleging discrimination under Title IX, nor does it preclude an individual from contacting the Office of Civil Rights and alleging that they are being discriminated against or harassed. The Office of Civil Rights still has the option to investigate discrimination/harassment claims made by transgender students. However, the outcome of any Office of Civil Rights’ investigation is questionable based upon the recent guidance.
Bottom Line for Schools
While the recision of the Obama order on transgender rights may cool agency fervor over Title IX enforcement for funding purposes, it is not likely to defer plaintiff’s counsel from filing civil lawsuits.
Until a ruling is received concerning the substantive issues raised in the GG case, it is best to contact your solicitor when facing questions regarding transgender students so that you may avoid allegations of discrimination.
School Law Bullets are a publication of KingSpry’s Education Law Practice Group. They are meant to be informational and do not constitute legal advice. John E. Freund, III, is our editor.
