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The Trump Administration Withdraws Department Of Education’s Guidance Regarding Transgender Students

On February 22, 2017, President Donald J. Trump’s Administration withdrew the Department of Justice and Department of Education’s prior joint guidance regarding transgender students. To read the Department of Education’s February 22, 2017 press release entitled, “U.S. Secretary of Education Betsy DeVos Issues Statement on New Title IX Guidance,” please click here. To read the joint February 22, 2017 “Dear Colleague Letter” issued by the Department of Justice and the Department of Education, please click here.

As reported in our May 13, 2016 blog, the Departments of Justice and Education issued a joint Dear Colleague Letter which took the position that the prohibitions on discrimination “on the basis of sex” in Title IX of the Education Amendments of 1972 (Title IX) and its implementing regulations require that school districts provide transgender students access to sex-segregated facilities based on gender identity. To read our prior blog regarding the joint May 13, 2016 Dear Colleague Letter, please click here.

On February 22, 2017, the Departments of Justice and Education formally withdrew and rescinded the statements of policy and guidance outlined in the May 13, 2016 Dear Colleague Letter, along with a prior letter from the acting deputy assistant secretary for policy, which provided similar guidance.

According to the February 22, 2017 Dear Colleague Letter, “[t]hese guidance documents do not [. . .] contain extensive legal analysis or explain how the position is consistent with the express language of Title IX, nor did they undergo any formal public process.” The joint letter further states that the previous “interpretation has given rise to significant litigation regarding school restrooms and locker rooms,” including lawsuits in North Carolina, which we blogged about both here and here; in Texas, which we blogged about here; and in Ohio, which we blogged about here. Based upon these factors, the Departments of Justice and Education “decided to withdraw and rescind the above-referenced guidance documents in order to further and more completely consider the legal issues involved.”

While the Departments of Justice and Education withdrew the guidance documents, they emphasized that the withdrawal “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” and the Departments are “committed to the application of Title IX and other federal laws to ensure such protection.”

In concert with the release of the joint February 22, 2017 Dear Colleague Letter, the Department of Justice sent a letter to the United States Supreme Court notifying it of the decision to withdraw the prior guidance. To read this letter, please click here. The Department of Justice sent this letter to the United States Supreme Court as the decision to withdraw the previous guidance may substantially impact the decision in Gloucester County School Board v. G.G., which is a highly anticipated case currently pending before the United States Supreme Court regarding whether a transgender student may access a bathroom consistent with his gender identity. As we reported in our May 2, 2016 blog, the lower court in G.G. relied heavily on the Departments’ guidance regarding the “based on sex” element of Title IX in reaching its decision – even noting that a subsequent administration may choose to implement a different policy. To read our May 2, 2016 blog, please click here. Since the Trump Administration has chosen to implement a different policy than the Obama Administration, or reconsider that policy, the joint February 22, 2017 Dear Colleague Letter may prove fatal to the G.G. case – at least at the United States Supreme Court level.

The decision to implement a different policy creates more questions than answers for school officials and their students. The joint February 22, 2017 Dear Colleague Letter suggests that states and local school districts should play a substantial role in establishing educational policy in the context of transgender students. However, a policy regarding Title IX that defers entirely to local control does not provide any guidance to school officials, parents, or students. Significantly, such a policy ignores the impact that federal law and the courts will have on this issue, potentially leading to still more litigation regarding school restrooms and locker rooms.

The situation in Ohio provides a prime example of this dilemma. As we reported in our September 26, 2016 blog, an Ohio federal district court previously ordered an Ohio school district to treat a transgender student “as the girl she is, including referring to her by female pronouns and her female name and allowing her to use the girls’ restroom.” Bd. of Educ. of the Highland Local School Dist. v. United States Dept. of Educ., S.D.Ohio No. 2:16-CV-254 (Sept. 26, 2016). To read our September 26, 2016 blog, please click here. The Ohio federal district court did not limit its decision to Title IX, but went on to also analyze the case under the Equal Protection Clause of the U.S. Constitution. A federal appellate court subsequently denied a request to lift the order during the appeal, questioning whether the school district would likely prevail on appeal. To read our blog regarding the federal appellate court’s ruling, please click here.

The precedential value of these decisions is less than clear, particularly in light of the joint February 22, 2017 Dear Colleague Letter. School officials making decisions regarding restroom and bathroom access under the belief that the matter is entirely one of local control may run afoul of these, and other, decisions. Until there is greater clarity regarding this issue, Ohio school districts are strongly encouraged to contact legal counsel regarding these issues. McGown & Markling attorneys are always available to advise you regarding these issues.

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.

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