Trump Administration Rescinds Guidance on Transgender Student RightsFebruary 23, 2017 – Alerts Education Alert
Reversing the Obama Administration’s policy on the rights of transgender students, officials in the Trump Administration have issued a new “Dear Colleague Letter” (DCL) that reveals a sharp shift in the government’s stance on transgender rights under Title IX.
The Feb. 22 DCL, issued by the U.S. Department of Education, Office for Civil Rights (OCR) and the U.S. Department of Justice, Civil Rights Division withdraws earlier statements of policy and guidance issued in the Letter to Emily Prince, dated January 7, 2015, and the DCL on Transgender Students jointly issued by the Departments of Education and Justice in May 2016.
Rescission of Prior Guidance
What does this mean? Practically speaking, OCR’s rescission of its May 2016 guidance means it will not be investigating public school entities under Title IX for allegations that transgender students were not accommodated in the areas of bathroom or locker room access, school records modifications and all other areas highlighted in the May 2016 guidance. For school districts in Pennsylvania, this means that OCR will not investigate claims brought by students for failure to provide facilities access or accommodations for issues related to gender identity.
The February DCL takes the position that the two rescinded letters interpreted Title IX in a way that lacked “extensive legal analysis” or an explanation as to how the position “is consistent with the express language of Title IX.” The DCL highlighted differing interpretations in the Fourth Circuit as well as a Texas District Court and withdrew their earlier guidance in an effort to “further and more completely consider the legal issues involved” and leave the matters to the states to establish educational policy.
While the prior guidance has been rescinded, there still does not exist any affirmative duty to adopt a school board policy regarding transgender student access and accommodations. There is also nothing in the federal laws prohibiting schools from granting such access and accommodations based on gender identity.
Furthermore, as seen in the lawsuit lodged against Pine Richland School District, nothing in this DCL eliminates the private right of an individual student to sue a school district in federal court for violation of Title IX and the Equal Protection Clause. While OCR may not investigate those claims, individuals still retain the right to bring suit.
Reaffirmed Bullying and Harassment Protections
It is important to note that the February 22, 2017, DCL reaffirms that the withdrawal of these guidance letters in no way leaves students without protections from discrimination, bullying or harassment, and compels schools to ensure that all students, including LGBT students, are able to learn in a safe environment. OCR will continue to investigate all claims of discrimination to protect students and encourage civility in the classroom.
Although OCR may no longer investigate claims of transgender student discrimination for failure to provide accommodations in school on the basis of gender identity, individual students can still bring claims against districts for violations of Section 1983 under a state-created danger theory should a district fail to respond appropriately to a student being bullied or harassed to the extent of physical harm.
Further Clarification Is Forthcoming From the Supreme Court
While this DCL’s proclamation is considered to be in effect immediately, the Supreme Court of the United States (SCOTUS) is scheduled to hear oral arguments on this very issue in late March in the matter of Gloucester County School Board v. G.G. Counsel for both parties have indicated their desire for this case to proceed so that the Supreme Court can still interpret the school board’s policy in relation to the language of Title IX independent of any DOE guidance.
The justices could forge on with the case or send it back to the Fourth Circuit to have it weigh in more fully on the Title IX question independent of any regulatory interpretation by an administrative agency.
What’s the Bottom Line?
- Schools will no longer face potential investigations from OCR for claims of transgender student discrimination arising out of a lack of Title IX accommodations in school for gender identity.
- There remains no affirmative duty to adopt a school board policy taking any position on transgender student access to bathrooms, locker rooms or other accommodations.
- Schools may continue to provide bathroom or locker room access. This DCL does not prohibit schools from choosing to do so.
- SCOTUS is anticipated to provide clarification of this matter through the Gloucester County School Board v. G.G. matter.
- Private causes of action remain a potential area of liability for districts despite the cessation of OCR investigations.