On February 22, 2017, one day before briefs were submitted to the Supreme Court in a case involving a transgender student in Pennsylvania, the Trump Administration, through the Department of Justice (DOJ) and the Department of Education (DOE) changed the landscape, once again, for transgender students in Wisconsin and for School Districts looking to adopt legally compliant policies. By issuance of a “Dear Colleague” letter, the DOJ and DOE have withdrawn statements of policy and guidance reflected in two significant documents:

• 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,
• 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 previously issued guidance documents took the position that Title IX’s prohibition of discrimination on the basis of “sex” requires Districts to afford a transgender student access to restroom and locker room facilities, among other things, consistent with their gender identity, rather than the gender assigned to the student at birth.

Employers interested in this news should remember that this Dear Colleague letter does not directly impact guidance and policy statements previously issued by the EEOC and OSHA which require employers to permit employees to utilize restroom facilities consistent with their gender identity.

Through yesterday’s Dear Colleague letter, this Administration asserted that it will not rely on the views expressed by the DOJ and DOE under the Obama Administration. To support this change of course, the Dear Colleague letter cites conflicting case law interpretation of Title IX and ongoing federal litigation in Texas which resulted in a nationwide injunction prohibiting the enforcement of the guidance documents.

For school district administrators, board members, teachers, students and parents, the February 22, 2017, Dear Colleague letter offers little in terms of answers to questions related to the education and rights of transgender students. In an attempt to provide clarity on this Administration’s interpretation of Title IX, the Dear Colleague letter does note that:

“This withdrawal of these guidance documents does not leave students without protections from discrimination, bullying, or harassment. All schools must ensure that all students, including LGBT students, are able to learn and thrive in a safe environment.  The Department of Education Office for Civil Rights will continue its duty under law to hear all claims of discrimination and will explore every appropriate opportunity to protect all students and to encourage civility in our classrooms. The Department of Education and the Department of Justice are committed to the application of Title IX and other federal laws to ensure such protection.”

It is clear that Districts must protect transgender students from discrimination, bullying, and harassment. It is equally clear that, at this time, guidance regarding the treatment of transgender students, and particularly with respect to restroom and locker room access, remains inconsistent. The Supreme Court received briefing in Gloucester County School Board v. G.G. today. As a result of yesterday’s Dear Colleague letter, the Court may choose to exercise a number of options. It may send the case back to the 4th Circuit for it to weigh in more fully on Title IX or they could forge ahead and rule on that question themselves. We should know more about which direction the Court chooses to pursue when they hear oral argument in the case next month, if not before.