A flurry of recent news reports signals a marked change by the Trump administration of the Federal government’s approach toward the rights of transgender students in public education. What, if any, practical implications do these changes bring for public schools and universities?  

Most recently, the New York Times reported that a leaked Department of Health and Human Services memorandum argued for the need to uniformly define “gender” as “a person’s status as male or female based on immutable biological traits identifiably by or before birth.” The memorandum further proposed that “[t]he sex listed on a person’s birth certificate, as originally issued,” should “constitute definitive proof of a person’s sex unless rebutted by reliable genetic evidence.”

Earlier this month, the Education Department’s Office for Civil Rights (OCR) reportedly opened an investigation into whether a Georgia school district’s policy allowing transgender students to choose which bathroom to use at school created a “hostile environment” based on sex for a female kindergarten student who said a transgender student assaulted her in a school bathroom.

These reports signal a major shift in the approach of the Federal government, and particularly OCR, toward transgender students, which began in February 2017 when the Education Department withdraw Obama-era guidance on transgender students issued in 2016. What do school leaders need to know about how to proceed in light of this ever-changing legal landscape?

• OCR can still consider complaints by transgender students against schools. Even with the Georgia OCR case and the withdrawal of the 2016 guidance, current OCR policy, described in a June 2017 memorandum to OCR staff, still allows complaints that a school failed to address sex discrimination, sex- or gender-based harassment, and retaliation against a transgender student in a public school. These cases typically rely on discrimination or harassment based on a transgender student’s failure to conform with stereotyped notions of masculinity or femininity, which has long been recognized as a basis for sex-based claims under relevant law.
• Most court precedent still recognizes that transgender students have rights under Federal laws. The June 2017 memorandum also directs OCR staff to rely on Title IX as interpreted by federal courts and current OCR guidance documents in evaluating complaints of sex discrimination against all individuals, including transgender students. As Franczek Radelet reported in June 2017, the Seventh Circuit, which has jurisdiction over Illinois, Indiana, and Wisconsin, found that a policy that required a student to use a bathroom that did not confirm with the student’s gender identity violated Title IX. The case remains precedential in Illinois, Indiana, and Wisconsin and should be considered by school leaders addressing requests by transgender students.
• Current changes at the Federal level do not alter responsibilities under state law. For example, as explained by the Illinois Association of School Boards, complaints have been filed on behalf of transgender students under Illinois laws that are distinct from any Federal mandates or guidelines. The practical implications of state law are still being worked out in Illinois courts, making it even more important for schools addressing requests from or complaints about transgender students to monitor developments. We anticipate the change at the federal level will push more complaints to the Illinois Department of Human Rights.