Update 3/7/17
Who knew such few words could have such a potential impact? On Monday, the Supreme Court of the United States issued a one-sentence order vacating the United States Court of Appeals for the 4th Circuit’s decision in favor of Gavin Grimm, a transgender student. In doing so, it remanded the case back to the 4th Circuit “for further consideration in light of the guidance” jointly issued by the Department of Education and Department of Justice on February 22, 2017, revoking the Obama administration’s guidance on transgender students. While both sides had hoped that the Court would still hear the case, it is now the responsibility of the 4th Circuit to determine whether Title IX protects the rights of transgender students by prohibiting discrimination based on one’s gender identity. This time, however, it must do so without relying on the Obama administration’s previous guidance.
Stay tuned. As other legal challenges are proceeding through the federal courts, it seems likely that the Supreme Court will eventually have to weigh in on this or a related issue; however, it seems clear that it will not happen this term.
Update 3/2/17
Just this week, the United States District Court for the Western District of Pennsylvania granted a preliminary junction on behalf of three transgender students who attend the Pine-Richland High School. The effect of the injunction stopped the district from enforcing its policy that required students to use bathrooms consistent with their biological sex or to use unisex bathrooms. The court found that the students were likely to be successful in their claims that the district’s policy violated the Equal Protection Clause of the United States Constitution. It did not, however, find that they would likely be successful under their Title IX claims. Nonetheless, this decision firmly reinforces our guidance to continue to treat transgender students in the manner prescribed in the blog entry below.
On Wednesday, in a jointly issued Dear Colleague Letter, the Department of Justice and the Department of Education rescinded previously issued guidance regarding transgender students. The guidance in question, issued on May 13, 2016, under the Obama administration, stated that a student’s gender identity will be treated as the student’s sex. Therefore, refusing to allow a transgender student to use the bathroom or locker room consistent with the student’s gender identity would be considered a violation of Title IX because it would amount to sex discrimination.
The new Letter states that the previous guidance did not “contain extensive legal analysis or explain how the position is consistent with the express language of Title IX, nor did they undergo any formal public process.” It added, that while the Departments will not rely on the views expressed in the previously published guidance, both will further consider and review “the legal issues involved.” The Letter also suggests that local schools and states might be in a better position to determine what protections will be offered to transgender students, declaring: “there must be due regard to the primary role of the States and local school districts in establishing educational policy.” However, placing the responsibility of interpreting federal anti-discrimination law into the hands of 50 different states and thousands of schools, will present its own legal conflicts and challenges.
With the United States Supreme Court gearing up to hear oral arguments next month in the case of Gavin Grimm, a transgender male student who was denied access to using the bathrooms that correspond with his gender identity, the joint action of these two Departments could weigh heavily on the outcome. A significant issue in the Grimm case revolved around how much deference should be allotted to the Department of Education’s interpretation of its own Title IX regulations regarding bathroom access. In addition to its February 22, 2017, Letter, the Department of Justice notified the Supreme Court of the Departments’ decision to rescind the previous guidance and requested that the Court not rely “on the views expressed in the guidance.” As such, it is conceivable that the Court might declare this issue moot and send the case back to the 4th Circuit to determine a result in light of the new “guidance,” or the Court may still decide whether gender identity qualifies as sex with regards to Title IX protections. So,we are in a “wait and see” mode.
This latest Dear Colleague Letter points out that students are still protected from “discrimination, bullying, or harassment,” and “[a]ll schools must ensure that all students, including LGBT students, are able to learn and thrive in a safe environment.” Yet, the Letter does not specifically connect discrimination protections to LGBT student accommodations. Finally, the Letter does not prevent Districts from providing greater levels of protections than the Letter suggests are required.
Until the dust settles with regards to the transgender student debate, we advise districts to make no change in practice. Continue to provide accommodations to transgender students on an individualized basis and adhere to the principles that we have recommended for several years, including, where applicable, providing access to the bathrooms and/or locker rooms consistent with a student’s gender identity. Rest assured that denying transgender students such access or accommodation will very likely result in legal challenges as civil rights groups and parent attorneys are closely monitoring how districts address the new guidance.
Ironically, the Letter concludes that if you have any questions, you are encouraged to contact the Department of Education or the Department of Justice. If, instead, you are looking for more immediate assistance, please do not hesitate to contact the School Law Group at Stock and Leader.