By Mary S. Gerbig
The U.S. Department of Education, along with the U.S. Department of Justice, issued a Dear Colleague Letter on February 22, 2017 withdrawing the “statements of policy and guidance” originally found in their May 13, 2016 Letter on Transgender Students. As discussed in our May 20, 2016 client alert, and updated alerts on August 8, 2016 and October 28, 2016, the May 2016 guidance discussed a school’s obligation under Title IX to treat a student consistent with a student’s gender identity when a student or the student’s parent or guardian notifies school administration that the student will assert a gender identity different from previous representations or records. The February 2017 Dear Colleague Letter now rescinds that guidance.
The newly issued Dear Colleague Letter states that the Department of Justice and Department of Education “have decided to withdraw and rescind the above-referenced guidance documents in order to further and more completely consider the legal issues involved. The Departments thus will not rely on the views expressed within them.” Furthermore, it indicates that “there must be due regard for the primary role of the States and local school districts in establishing educational policy.”
The Department of Justice also sent a letter to the U.S. Supreme Court informing them of the withdrawal because Gloucester County School Board v. GG, No. 16-273, a pending case where a transgender teen sued his school for prohibiting him from using the boy’s bathroom, is set for argument on March 28, 2017. Two issues were scheduled to be argued. The first concerned whether deference should be given by the Court to the May 2016 Dear Colleague Letter. The second issue, much broader in scope, is whether Title IX protects transgender students from discrimination under the category of “sex”.
The Supreme Court has requested the lawyers representing each side in Gloucester to submit letters outlining how the recent Dear Colleague Letter may affect the case. It will then be up to the Court to decide if they want to return the case to the lower court or rule on the second, broader, issue.
The federal government's decision earlier in February to withdraw from a different appeal in the Fifth Circuit foreshadowed the U.S. Department of Education action to withdraw the guidance in total. The U.S. Department of Justice (DOJ) filed a request with the U.S. Court of Appeals for the Fifth Circuit withdrawing the federal government's legal challenge to the nationwide application of the U.S. District Court for the Northern District of Texas' injunction which barred the federal government from enforcing the joint guidance from the U.S. Department of Education (ED) and DOJ interpreting Titles VII and IX as applying to gender identity.
Given that the Department of Education has now withdrawn the May 2016 guidance and the Department of Justice has withdrawn all defenses for the guidance, we recommend following an approach which focuses on case-by-case interaction and evaluation of bathroom or locker room accommodation requests, and defers to state requirements on other issues. For example, for any request to change a student’s name in their official school record, school districts or higher education institutions should defer to the state law requirements for a legal name change. As a practical matter, school officials can and should still engage in discussion on an individual basis with students who are identifying as transgender and their families to determine when other alternative names may be used on a day-to-day basis by staff members.
Requests for accommodations directed to school districts should be reviewed pursuant to the state law governing pupil nondiscrimination under Wis. Stats. Sec. 118.13, Wis. Administrative Code PI 9 and district policy. Both school districts and higher education institutions should continue to review requests in light of the plain language of Title IX. School officials should review student and parent requests in the context of providing access to programs, activities and facilities generally. However, school officials can be candid with parents and students that while the interpretation of the law is in a state of imminent review by both the U.S. Supreme Court and the 7th Circuit Court of Appeals, the issue of bathroom or locker room accommodations is not yet settled by the courts. School officials should guard against sex stereotyping and affirmatively take action to guard against bullying of students who identify as transgender, as bullying policies can be triggered whether or not gender identity is a legally protected classification.
During this extraordinary time, be mindful that factual distinctions can have enormous consequences in determining rights and responsibilities under the law. If you have questions that arise regarding the application of Title IX or the state pupil nondiscrimination law, Wis. Stats. sec. 118.13, you should seek legal counsel.
Please contact your Davis & Kuelthau, s.c. attorney, the author(s) noted above or the related practice group chair linked here if you have any questions.