Late on February 22, 2017, the Departments of Education and Justice (“Departments”) published a Dear Colleague Letter (“DCL”) withdrawing guidance which had previously been handed down by the Obama administration regarding public schools' treatment of transgender students. The previous guidance came in the form of two other DCLs, dated January 7, 2015 and May 13, 2016, which together contained detailed directives for schools about transgender student issues.
The most controversial piece of the Obama-era DCLs had attempted to condition receipt of federal funds on school districts allowing transgender students to use the restroom corresponding with their gender identity rather than with their sex assigned at birth. That interpretation of the law has been the subject of several lawsuits in the last year, including G.G. v. Gloucester County School Board, in which the 4th Circuit held that according to Title IX and the federal government’s interpretation contained in the DCLs, a transgender male high school student (Gavin Grimm) was likely to prevail in his request to use the boys’ restroom at school. The 4th Circuit therefore entered a preliminary injunction requiring the Gloucester district to allow Gavin to use the male restroom. That decision was stayed by the United States Supreme Court last fall.
In the fall of 2016, another federal court reached the opposite conclusion in Texas v. US, and held that the 2016 DCL appeared to be an improper exercise of executive authority which had not gone through the proper process for making a new rule. The court in Texas v. US issued an injunction nationwide, prohibiting the federal government from enforcing their DCLs as to restroom access. Several other lawsuits are currently pending around the country with respect to the restroom issue in schools.
G.G. is set to be heard by the Supreme Court on March 28th and Texas v. US is on appeal to the 5th Circuit. However, with the withdrawal, these two cases lose much of their import, because parties in each were expressly relying on the 2015 and/or 2016 DCLs. Either or both cases could go away on procedural grounds. However, others of the pending transgender cases advanced other arguments to support restroom access, including Equal Protection under the U.S. and state constitutions. That argument has not been affected by the Trump administration’s DCL, and so the issue could reach the Supreme Court again as those cases work their way through the judicial system.
Other lesser known provisions of the 2015 and 2016 DCLs directed schools on topics such as identification documents, names, pronouns, sex-segregated activities, privacy of transgender status, and discrimination/harassment based on transgender status.
The February 22nd DCL is only two pages long (you can read the whole document here) and does not address the above issues with any detail. Instead, it simply withdraws the earlier guidance, stating that the Departments will no longer rely on any of the views expressed in the previous DCLs. The stated purpose of the withdrawal is for the Departments to “further and more completely consider the legal issues involved” and also that “there must be due regard for the primary role of the States and local school districts in establishing educational policy.”
This new DCL does make clear that the withdrawal does not take away transgender students’ protection from discrimination, bullying, or harassment, and promises that the Office for Civil Rights will continue to hear all claims of discrimination. However, aside from that guaranteed protection, the withdrawal of previous guidance will likely create uncertainty for school administrators in the states which do not have state law on the topic (Missouri does not currently have relevant state law, though a bill is pending in the General Assembly which could resolve the restroom issue, at least temporarily).
The foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation and should not be relied on as such. Please contact one of our school law attorneys if you have any questions regarding how to structure or modify your school or district's policies and/or practices given this change in the legal landscape.
This update was prepared by Robert A. Useted and Erin M. Leach.