U.S. Department of Education and U.S. Department of Justice Withdraw Guidance on Transgender Students (CCD)

On February 22, 2017, the U.S. Department of Education, Office for Civil Rights (“OCR”) and the U.S. Department of Justice, Civil Rights Division (“CRD”) jointly issued a Dear Colleague Letter withdrawing two guidance documents relative to Title IX protections for transgender students. Specifically, the letter withdrew and rescinded guidance contained in the Letter to Emily Prince dated January 7, 2015 and the Dear Colleague Letter on Transgender Students dated May 13, 2016.

LEGAL UPDATE

March 10, 2017

To:  Superintendents/Presidents/Chancellors, Member Community College Districts

From: Ellie R. Austin, Schools Legal Counsel

Subject: U.S. Department of Education and U.S. Department of Justice Withdraw Guidance on Transgender Students

Memo No. 08-2017 (CC) – REVISED

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On February 22, 2017, the U.S. Department of Education, Office for Civil Rights (“OCR”) and the U.S. Department of Justice, Civil Rights Division (“CRD”) jointly issued a Dear Colleague Letter withdrawing two guidance documents relative to Title IX protections for transgender students.  Specifically, the letter withdrew and rescinded guidance contained in the Letter to Emily Prince dated January 7, 2015[1] and the Dear Colleague Letter on Transgender Students dated May 13, 2016.[2]

Both documents took the position that Title IX of the Education Amendments of 1972 (“Title IX”),[3] which prohibits sex discrimination in educational programs and activities, required transgender students to be able to access sex-segregated facilities, including restrooms and locker rooms, based on their gender identity.[4]  The February 22, 2017 Dear Colleague Letter is attached.[5]

The letter provided that the withdrawal of this interpretation “does not leave students without protections from discrimination, bullying, or harassment,” and that “schools must ensure that all students, including LGBT students, are able to learn and thrive in a safe environment.”

Notwithstanding this federal action, California law[6] affords equal rights and opportunities to students in postsecondary educational institutions without regard to, and prohibits discrimination on the basis of, gender, gender identity, or gender expression.[7] This includes the right to participate in the educational process free from discrimination and harassment on the basis of real or perceived personal characteristics, including gender, gender identity, or gender expression.[8]

It is the recommendation of this office that community college districts permit transgender students access to sex-segregated facilities consistent with their gender identity.

In addition, community college districts are requested to designate an employee at each campus as a point of contact for the needs of LGBT faculty, staff, and students, and publish the employee’s name and contact information on the campus website and in any campus directories.[9]

Meanwhile, the Gloucester County School Board v. G.G. case previously pending before the Supreme Court has been thrown into legal limbo.  The G.G. case addresses whether a transgender high school student can use the boys’ restroom consistent with his gender identity. On March 6, 2017, the Supreme Court issued a one-sentence order vacating the Fourth Circuit Court of Appeal’s ruling in favor of the transgender teen and remanding the case back to the Fourth Circuit.  The Court of Appeals must now decide whether Title IX’s prohibition on sex discrimination extends to gender identity in the absence of federal guidance on the issue.

Please contact our office with questions regarding this Legal Update or any other legal matter.

The information in this Legal Update is provided as a summary of law and is not intended as legal advice.  Application of the law may vary depending on the particular facts and circumstances at issue.  We, therefore, recommend that you consult legal counsel to advise you on how the law applies to your specific situation.

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