Ballard Spahr LLP

The U.S. Departments of Justice and Education have withdrawn existing guidance on transgender students and issued a new Dear Colleague Letter calling into question whether Title IX requires that schools permit students to use restroom and locker room facilities aligned with their gender identity. The government informed schools that the withdrawn guidance does not contain extensive legal support for the position that Title IX's prohibition against discrimination on the basis of sex extends to access to sex-segregated facilities based on gender identity. The Department of Justice and Department of Education emphasized that states and local school districts should have a primary role in establishing educational policy.

Following the government's apparent shift in its interpretation of Title IX with regard to gender identity, the U.S. Supreme Court remanded for further consideration the issue of whether Title IX's prohibition of sex discrimination extends to discrimination based on gender identity. The case before the Court was filed by a transgender teen who asserts a right to use the boys' restroom at his high school. In siding with the teen, the Fourth Circuit relied heavily on the Department of Education Office for Civil Rights' (OCR) position that if a school separates student restrooms and locker rooms on the basis of sex, the school generally must treat transgender students in a manner consistent with their gender identity. The government's revocation of its key guidance documents espousing this position calls into question the foundation of the Fourth Circuit's decision.

Though both parties asked that the Supreme Court move forward with the case, the Court vacated the Fourth Circuit's decision and remanded for reconsideration in light of the changed guidance.

The actions by the government and the Court have raised questions for schools across the country about the status of existing policies, practices, and protections; the impact of state laws and related rulings by federal courts; the status of other related OCR guidance on gender identity; and implications for gender identity issues and transgender students on campus.