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Department of Education and Department of Justice Withdraw Title IX Transgender Student Federal Guidance
By Kara T. Rozin / Feb 27, 2017
On February 22, 2017, the Department of Education and the Department of Justice ("Departments") withdrew statements of policy and guidance on transgender students and their use of school restrooms and locker rooms that were a hot topic of debate in several federal lawsuits across the country. In a new two-page Dear Colleague Letter, the Departments withdrew the January 2015 letter and the May 2016 Office for Civil Rights ("OCR") Dear Colleague Letter ("DCL). The January 2015 letter is one of the key issues in Grim v Gloucester City School Board, which is scheduled for oral argument before the United States Supreme Court in March of 2017. In Grim, a transgender student, who identified as male, sued the school district after the board of education refused to allow him to use the boys' bathroom. A Texas United States District Court enjoined operation of the OCR's May 2016 guidance.
The previous guidance was based on the Obama administration's defining "sex" in Title IX (the federal law prohibiting sex discrimination in education) to mean gender identity rather than biological sex. While not legally binding, the guidance sent a warning that schools could lose federal funding if they did not comply. The previous guidance "urged" school districts to allow transgender students to use bathrooms and locker rooms matching their gender identities.
Gender Identity refers to an individual's internal sense of gender. A person's gender identity may be different from or the same as the person's sex assigned at birth.
The Departments' February 22, 2017 guidance said the earlier guidance "has given rise to significant litigation regarding school restrooms and locker rooms." The Departments withdrew the guidance "in order to further and more completely consider the legal issues involved."
While the new guidance does amount to a significant rollback of transgender protections overall, it does not leave transgender students without protection from discrimination, bullying or harassment. The new DCL states:
Please 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 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.
The Departments believe the states and local school districts should determine whether students should have access to restrooms or locker rooms in accordance with their expressed gender identity and not just based on their biological sex. The Michigan Department of Education ("MDE") issued guidance on transgender students in February 2016. In discussing a transgender student's access to restrooms or locker rooms the MDE guidance states:
Students should be allowed to use the restroom in accordance with their gender identity. Other options, such as a staff bathroom or nurse's office, should be made available but not be presented as the only option.
Locker room usage should be determined on a case by case basis using the guiding principles of safety and honoring the student's gender identity and expression. Options include adjusted changing schedules and the use of other nearby private areas.
Like the previous federal guidance, the MDE's guidance on transgender students is not legally binding. Therefore, school districts should carefully evaluate, with legal counsel on a case by case basis, what additional protections, if any, it will extend to its transgender students. Notwithstanding the February 22, 2017 withdrawal, transgender students, like any other students, are protected from discrimination, bullying or harassment. School districts will continue to be subject to an OCR complaint and investigation if a transgender student alleges a violation of Title IX, or any other federal laws that ensure such protection. If you have any questions, please contact Kara Rozin at krozin@clarkhill.com | (616) 608-1110, or another member of Clark Hill's Education Practice Group.