The evolving field of enforcement of Title IX matters took another turn last week.
On February 22, 2017, the Department of Education and Department of Justice, under the direction of the new Administration, together issued a “Dear Colleague Letter” (Letter) expressly rescinding certain guidance letters from the previous administration, which provided that Title IX’s prohibition of discrimination based on “sex” protects transgender students from discrimination based on their gender identity. Specifically, the Letter withdraws:
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Letter to Emily Prince from James A. Ferg-Cadima, Acting Deputy Assistant Secretary for Policy, Office for Civil Rights at the Department of Education dated January 7, 2015; and
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Dear Colleague Letter on Transgender Students jointly issued by the Civil Rights Division of the Department of Justice and the Department of Education dated May 13, 2016.
The January 7, 2015 Letter stated that schools which treat students differently based on sex should treat transgender students according to their gender identity. The May 13, 2016 Letter went farther, stating that Title IX’s prohibition against sex discrimination “encompasses discrimination based on a student’s gender identity, including discrimination based on a student’s transgender status.” The May 13, 2016 Letter summarized institutions’ obligations to protect transgender students and, citing to Title IX and its regulations, required that schools “allow transgender students access to such facilities [including sex-segregated bathrooms] consistent with their gender identity.”
However, the new Administration’s Letter explains the Administration’s actions by asserting that the January 7, 2015 and May 13, 2016 Letters 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.” Furthermore, according to the Administration, “there must be due regard for the primary role of the States and local school districts in establishing educational policy.”
The Letter was issued just over a month before the United States Supreme Court is scheduled to hear Gloucester County School Board v. G.G. In Gloucester, the Fourth Circuit Court of Appeals reversed the lower court’s dismissal of a male transgender high school student’s Title IX claim that he was discriminated against when his school did not permit him to use the boys’ bathroom. The decision in favor of the student was based in large part on the Fourth Circuit’s deference to the January 7, 2015 Letter.
The Supreme Court granted Gloucester’s Petition for Certiorari on two issues:
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Whether deference should be given by a court to an unpublished agency letter that does not carry the force of law and is issued in the context of the dispute in which deference is sought;
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Whether or not deference is given to the agency letter, should its specific interpretation of Title IX and its regulations be given effect.
Although an oral argument is scheduled for March 28, 2017, the Court has, in response to the Administration’s Letter, asked both parties to submit letters discussing “how the case should proceed in light of” the Letter revoking the Guidance. The Court’s request suggests that the Court is considering whether the case should go forward now that the Guidance upon which the Fourth Circuit relied has been withdrawn. Indeed, the Letter arguably moots the first issue on which the Supreme Court agreed to hear the case. However, the second issue arguably survives; the Court could still hear argument on the issue of whether Title IX should be interpreted to prohibit discrimination based on gender identity.
The next steps taken by the Court will be watched closely as it remains at eight justices until a new one is approved by the Senate. Should Gloucester be heard and decided by the Court in its current form, it would take a 5-3 vote to change the ruling by the Fourth Circuit since a tied vote upholds the lower court’s decision.
The future of Title IX enforcement will remain in flux until competing theories are sorted out by the courts and addressed by the new Administration in additional “Dear Colleague” letters. While a wholesale eradication of the decades-old protection against discrimination in education is unlikely, a scaled back level of interest by the new Administration in its enforcement is foreseeable. These likely changes in the enforcement and interpretation of Title IX could leave some students uncertain about their rights and institutions unclear of their obligations and liabilities.
