On February 10, 2017, President Donald J. Trump’s Administration dropped the federal government’s challenge to a nationwide injunction prohibiting the United States Department of Education (“Department”) from enforcing its interpretation of Title IX of the Education Amendments of 1972 (“Title IX”) regarding bathroom access for transgender students.
As reported in our August 21, 2016 blog, a federal district court in Texas issued a nationwide order preventing the Department from “initiating, continuing, or concluding any investigation based on [the Department’s] interpretation that the definition of sex includes gender identity in Title IX’s prohibition against discrimination on the basis of sex.” To read our August 21, 2016 blog, please click here.
The Department’s interpretation was outlined in a Dear Colleague Letter, which announced the Department’s position that the obligation imposed under Title IX “to ensure nondiscrimination on the basis of sex requires schools to provide transgender students equal access to educational programs and activities even in circumstances in which other students, parents, or community members raise objections or concerns.” This obligation would extend to providing equal access to restrooms, locker rooms, showers, and other facilities consistent with transgender students’ gender identities. To read our prior blog regarding the Dear Colleague Letter, please click here.
Former President Barack H. Obama’s Administration appealed the Texas federal district court’s ruling issuing the nationwide injunction arguing, among other things, that the injunction should only apply to the 13 states involved in the lawsuit and not nationwide. However, on February 10, 2017, the United States Department of Justice (“Department of Justice”) withdrew its motion.
The Trump Administration’s decision to withdraw the motion does not, in itself, have an immediate impact on school districts because the nationwide injunction has been in effect since August 2016. However, the Trump Administration also states in its motion, that the “[t]he parties are currently considering how best to proceed in this appeal,” which suggests that the Trump Administration may elect to abandon the appeal entirely. Moreover, the statement signals that the Trump Administration may not lend any support in Gloucester County School Board v. G.G., a highly anticipated case that is currently pending before the United States Supreme Court regarding whether a transgender student may access a bathroom consistent with his gender identity. To read our blog discussing the G.G. case, please click here.
Please check our blog often for updates regarding this rapidly emerging issue impacting schools districts across the country.
Authors: Matthew John Markling and Patrick Vrobel
Note: This blog entry does not constitute – nor does it contain – legal advice. Legal jurisprudence is like the always changing Midwestern weather. As a result, this single blog entry cannot substitute for consultation with a McGown & Markling attorney. If legal advice is needed with respect to a specific factual situation, please feel free to contact a McGown & Markling attorney.