The U.S. Department of Justice (DOJ) and Department of Education (DOE) jointly issued a statement rescinding the guidance on transgender students’ rights under Title IX issued to school districts nationwide in May. The prior administration’s guidance had confirmed that the DOJ and DOE interpreted a student’s “sex” to include gender identity, or that person’s subjective or internal gender. The guidance had said that prohibiting transgender students’ use of bathrooms that align with their gender identity violates Title IX. The DOE and DOJ now state they will not rely on the views expressed in the prior guidance.
The guidance withdrawal comes as the Supreme Court is set to hear arguments in the landmark case of G.G. v. Gloucester County School Board on March 28, 2017. In G.G., a high school student whose birth-assigned sex is female but whose gender identity is male sued his Virginia high school to gain unrestricted bathroom access. The Fourth Circuit Court of Appeals decided the case in favor of the student based on the DOE’s interpretation of Title IX that is now withdrawn. Because the DOE’s interpretation was central to the case, the justices have the option of sending the case back to the lower court for further review.
The letter issued on February 22 states that the withdrawal of the prior transgender guidance does not diminish the protections from bullying and harassment available to all students. According to the letter, “schools must ensure that all students, including LGBT students, are able to learn and thrive in a safe environment.” In addition to federal law, Illinois law protects students from bullying on the basis of gender-related identity or expression.
The DOE and DOJ letter raises as many questions as it answers. Withdrawing the prior guidance does not preclude school districts from allowing bathroom or locker room access to transgender students, but indicates that the DOE and DOJ will not require or enforce access under Title IX. Also, it does not prevent parents or students from pursuing private litigation asserting that Title IX or state law requires schools to allow bathroom or locker room access.
