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Stay the Course: Recent Developments Regarding Transgender Students’ Rights

On May 13, 2016 the U.S. Department of Education’s Office of Civil Rights (“OCR”) issued a Dear Colleague Letter regarding transgender student rights, instructing schools to treat transgender students consistent with their gender identities in the provision of sex-segregated restrooms, locker rooms, shower facilities, housing, athletic teams, and single-sex classes.  Just over a week ago Judge Reed O’Connor, a judge for the United States District Court for the Northern District of Texas, issued a preliminary injunction to attempt to prevent OCR from enforcing the May 2016 Dear Colleague Letter guidance.

The injunction does not apply to “states that authorize schools to define sex to include gender identity for purposes of providing separate restrooms, locker rooms, showers, and other intimate facilities.  It . . . only applies to those states whose laws direct separation.”  In Pennsylvania, there are no laws or binding legal precedent that require the segregation of such facilities on the basis of one’s sex as assigned at birth.  Therefore, the injunction on transgender student rights does not impact Pennsylvania school districts.

We recommend that districts continue to operate as they have always done and provide accommodations on an individual basis, in compliance with the May 2016 OCR guidance.  Districts that have not done so should consider including gender identity in their Nondiscrimination or Unlawful Harassment Policies to ensure that transgender students are not discriminated against or harassed as a result of their gender identity.  We continue to recommend that districts develop a written protocol or set of administrative regulations to address these individualized accommodations for transgender students.   Therefore, unless and until a binding decision is issued by a Pennsylvania court, relevant federal court, or the United States Supreme Court, follow OCR’s guidance.

We understand that this is a complex issue that may change in the near future.  If your district has any questions or concerns regarding how to properly accommodate transgender students or what the current legal environment dictates, please do not hesitate to contact the School Law Group at Stock and Leader.  We are always willing and prepared to help with any legal problem that you may face.

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