On February 22, the U.S. Departments of Education and Justice (“ED” and “DOJ,” respectively, and collectively, the “Departments”) issued a two-page Dear Colleague Letter to “withdraw and rescind” policy and guidance reflected in two documents issued by the Obama Administration. Those guidance documents interpreted Title IX of the Education Amendments of 1972 (“Title IX”) and its implementing regulations, which prohibit sex discrimination in educational programs and activities operated by recipients of Federal financial assistance, to prohibit discrimination based on a student’s gender identity, including discrimination based on a student’s transgender status. In the new Dear Colleague Letter, the Departments explain that they have decided to withdraw and rescind the guidance documents “in order to further and more completely consider the legal issues involved” in the interpretation of Title IX, and they “will not rely on the views expressed” within the previous guidance documents. Among the points made to support the action, the Departments express a belief that “in this context, there must be due regard for the primary role of the States and local school districts in establishing educational policy.” The Departments note that the withdrawal of the guidance documents “does not leave students without protections from discrimination, bullying, or harassment.” Although the new Dear Colleague Letter appears to have been written with public school districts particularly in mind, the withdrawn guidance had expressed positions with regard to universities and colleges as well.

The Dear Colleague Letter withdraws the following two guidance documents:

• A January 7, 2015 letter from the Acting Deputy Assistant Secretary for Policy, ED Office for Civil Rights (“OCR”), in which ED explained that while its Title IX regulations permit schools to provide sex-segregated restrooms, locker rooms, shower facilities, housing, athletic teams, and single-sex classes under certain circumstances, when a school elects to separate or treat students differently on the basis of sex in those circumstances, the school “generally must treat transgender students consistent with their gender identity.” In the letter, ED also encouraged schools to offer gender-neutral, individual-user facilities to any student who does not want to use shared sex-segregated facilities; and
• A May 13, 2016 Dear Colleague Letter on Transgender Students jointly issued by DOJ and ED.  In the Dear Colleague Letter, the Departments explained that they would “treat a student’s gender identity as the student’s sex for purposes of Title IX and its implementing regulations.” As a result, the Departments took the position that a school “must not treat a transgender student differently from the way it treats other students of the same gender identity.” The Dear Colleague Letter provided examples of how the Departments would evaluate a school’s compliance with Title IX in certain areas, including the use of identification documents, names, and pronouns; sex-segregated activities and facilities (e.g., restrooms and locker rooms); and privacy and education records.

As justification for withdrawal of the guidance documents, the new Dear Colleague Letter states that the previous guidance documents “do 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” for comment. The Departments note that the Title IX interpretation put forth in the previous guidance documents “has given rise to significant litigation regarding school restrooms and locker rooms”, and courts to date have not reached consensus on whether Title IX encompasses gender identity and transgender status.

The Title IX interpretation set forth in the previous guidance documents was challenged in several courts. Courts have come to different conclusions on whether Title IX’s prohibition on sex discrimination applies to gender identity. The U.S. District Court for the Northern District of Texas issued a nationwide preliminary injunction enjoining enforcement of the May 2016 Dear Colleague Letter. In a statement accompanying release of the new Dear Colleague Letter, Secretary DeVos noted that as a result of the injunction, ED has not enforced the guidance on sex-segregated facilities, “thus there is no immediate impact to students by rescinding [the previous] guidance.” On March 28, the U.S. Supreme Court is scheduled to hear oral argument in another case. In Gloucester County School Board v. G.G., the Supreme Court will consider whether a federal funds recipient that provides sex-segregated facilities is required under Title IX to treat transgender students consistent with their gender identity.

How the Departments’ decision to withdraw and rescind the previous guidance documents will affect the outcome of the pending legal challenges and OCR’s overall enforcement efforts is uncertain. In the new Dear Colleague Letter, the Departments state that “schools must ensure that all students, including LGBT students, are able to learn and thrive in a safe environment.” Specifically, according to the new Dear Colleague Letter, ED’s OCR will continue to investigate “all claims of discrimination” and will “explore every appropriate opportunity to protect students and to encourage civility in our classrooms.”