On February 22, 2017, the U.S. Departments of Justice and Education jointly released a new “Dear Colleague Letter” (DCL) rescinding previous guidance about transgender students. The DCL states that the previous guidance, which instructed schools to allow students to access sex-segregated facilities based on gender identity, will not be enforced by the departments, citing a lack of legal authority as the basis for withdrawing the guidance.
Noting that LGBTQ students are not without protection from bullying, harassment, and discrimination under federal law, the DCL promises that the Office for Civil Rights will “continue its duty under law to hear all claims of discrimination and will explore every appropriate opportunity to protect all students.”
Based on this policy change, the U.S. Supreme Court decided not to hear a case involving a transgender student’s access to school bathrooms and instead remanded the case back to the lower court. GG v Gloucester Co Sch Bd, 822 F3d 709 (CA 4, 2016).
While OCR and DOJ have rescinded their previous guidance, Title IX issues are ultimately determined by courts. Some courts have extended Title IX to include protections for transgender students – including requiring access to facilities based on gender identity. In December 2016, the Sixth Circuit Court of Appeals refused to reverse an injunction allowing an 11-year-old transgender student in Ohio to use facilities consistent with her gender identity. On February 27, 2017 – five days after the DCL was issued – a federal judge in Pennsylvania issued a similar injunction requiring a school to allow three male-to-female transgender students to use the women’s bathroom.
We expect that this issue will continue to develop in the courts. A school that refuses to allow transgender students to access facilities consistent with gender identity risks legal exposure, which could include having to pay the other party’s attorney fees if the school is unsuccessful.
School officials should continue to meet with transgender students and their parents to determine what accommodations are necessary for the student to feel safe and supported in school. The State Board of Education’s 2016 guidance remains in place and contains tips and solutions for schools. Board policies also may specifically apply to this issue.
Schools also must address any instances of bullying, harassment, and discrimination against LGBTQ students and take immediate steps to correct such behavior. Failure to address those issues could result in significant legal liability.
Thrun Law Firm attorneys have conducted Title IX training sessions, which include information about transgender students. To prevent potentially significant legal exposure, we encourage schools to arrange for Title IX training for all staff members. If your school is interested in training staff, please contact our office.