U.S. Department of Education and U.S. Department of Justice Withdraw Guidance on Transgender Students (K-12)

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 Specifically, the letter withdrew and rescinded guidance contained in the Letter to Emily Prince dated January 7, 2015 and the Dear Colleague Letter on Transgender Students dated May 13, 2016.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 9, 2017

To:  Superintendents, Member School Districts (K-12)

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


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  Specifically, the letter withdrew and rescinded guidance contained in the Letter to Emily Prince dated January 7, 2015[1] and the Dear Colleague Letter on Transgender Students dated May 13, 2016.[2]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 discrimination on the basis of sex 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 permits transgender students to participate in school programs and activities and use facilities according to their gender identity.  Section 221.5(f) of the Education Code provides:

A pupil shall be permitted to participate in sex-segregated school programs and activities, including athletic teams and competitions, and use facilities consistent with his or her gender identity, irrespective of the gender listed on the pupil’s records.

California law[6] also prohibits discrimination in public schools on the basis of gender, gender identity, and gender expression.[7]

Superintendent of Public Instruction Tom Torlakson stated his strong support for the rights of transgender students in a News Release issued by the California Department of Education on February 22, 2017. [8] He also clarified that California laws protecting transgender students remain intact.

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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[1] Available at http://www.emily-esque.com/wp/wp-content/uploads/2016/04/DOED-Reply-re-Transgender-Student-Restroom-Access_Redacted.pdf.

[2] Available at https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201605-title-ix-transgender.pdf.

[3] 20 U.S.C. § 1681 et seq.

[4] See 34 C.F.R. § 106.33.

[5] It is also available for download at https://www.justice.gov/opa/press-release/file/941551/download.

[6] Education Code § 200.

[7] “Gender” means sex, and includes a person’s gender identity and gender expression. “Gender expression” means a person’s gender-related appearance and behavior, whether or not stereotypically associated with the person’s sex assigned at birth. Education Code § 210.7.

[8] Available at http://www.cde.ca.gov/nr/ne/yr17/yr17rel17.asp.