On February 10, 2017, the U. S. Department of Justice (DOJ) under the Trump administration withdrew a motion made in November 2016 under the Obama administration with the U.S. Circuit Court of Appeals for the 5th Circuit; in its motion, the DOJ objected to a Texas Federal Court judge’s nationwide ban on the enforcement by the Departments of Justice and Education (the Departments) of its interpretation of “sex” under Title IX. On May 13, 2016, the Departments jointly released an eight page Dear Colleague Letter on Transgender Students explaining schools’ obligations under Title IX to protect students, including transgender students, from discrimination and harassment based upon sex. The Departments treat a student’s gender identity as a student’s sex for purposes of Title IX and its implementing regulations. The guidance confirmed that Title IX’s implementing regulations permits a school to provide sex-segregated facilities including restrooms under certain circumstances, but further elucidates that schools must allow transgender students access to such facilities consistent with their gender identity and may not require they use individual-user facilities when other students are not required to do so.¹ As recipients of federal funding, schools that fail to comply with the Departments’ guidance risk the possible loss of federal money.
The State of Texas, joined by ten other states and other entities², argued to Texas Federal Court judge, Reed O’Connor, the judge who ultimately granted the nationwide injunction, that the Departments had acted ultra vires, meaning beyond the scope of its authority and usurped the power of Congress by rewriting Title IX by revising the term “sex” in a manner entirely incompatible with congressional intent and it did so without resorting to proper procedures such as notice-and-comment required under the Administrative Procedure Act ( APA).
On the same day the DOJ withdrew its motion before the 5th Circuit Court of Appeals, the 5th Circuit Court of Appeals granted the parties’ request for a delay in the case and cancelled oral arguments that were scheduled for February 14, 2017. It is speculated that the DOJ under the Trump administration may take a different approach on transgendered student’s rights and there is even the possibility the DOJ/OCR May 2017 guidance will be modified or rescinded.
While the nationwide ban remains in place, schools’ obligations to transgender students under Title IX remain in a state of flux; schools await a definitive answer on a number of questions including whether the term “sex” under Title IX is to be interpreted to prohibit discrimination and harassment against transgender students; whether schools must permit transgender student access to school bathrooms or other sex segregated facilities based upon their gender identity and whether boards of education that adopt policies or practices prohibiting such use or require students to use a bathroom based upon their biological sex at birth will run afoul of federal law.
Clarity on the interpretation of what “sex” means under Title IX may be forthcoming sooner rather than later. Answers may even come before the resolution of the appeal of the case of Texas v. United States or prior to any further issuance of guidance by the DOJ/DOE on the subject of transgender student’s rights as the United State Supreme Court will hear argument on March 28, 2017 in the case of G.G. v. Gloucester County School Board, 822 F.3d 709 (4th Circ. 04/19/16). In the Gloucester case, a transgender male high school student sought a preliminary injunction to allow his use of a school’s restroom consistent with his male gender identity. The student alleges that his local Virginia school district denied him equal treatment and subjected him to discrimination based on sex in violation of the Title IX by passing a board policy that prohibited his continued use of the boys’ restroom for not being “biologically male.” The highest court will consider only two issues on appeal: (1) Whether courts should extend deference to an unpublished agency letter that, among other things, does not carry the force of law and was adopted in the context of the very dispute in which deference is sought; and (2) whether, with or without deference to the agency, the Department of Education’s specific interpretation of Title IX and 34 C.F.R. § 106.33, which provides that a funding recipient providing sex-separated facilities must “generally treat transgender students consistent with their gender identity,” should be given effect. The DOJ under Obama had filed a brief backing the student’s position. See Connecticut Education Law blog article: The United States Supreme Court Grants Certiorari in 4th Circuit Transgender Student Case.
To clarify, the nationwide ban is not aimed at schools but rather, the federal government. Schools are free to adopt or modify policies to accommodate transgender student access to school facilities such as restrooms. The ban also does not interfere with case-by-case decisions made by school administration regarding access to facilities based upon gender identity.
*SIGNIFICANT DEVELOPMENTS SINCE THIS ARTICLE WAS PUBLISHED*
On February 22, 2017, the DOJ/ED rescinded it’s May 2016 Guidance on Transgender Students; in response, the Governor of Connecticut on February 23, 2017 issued an executive order protecting transgender students’ rights in Connecticut. Governor Malloy states in the order that it is illegal in Connecticut to discriminate against students based upon gender identity or expression and that transgender students must be provided equal access to public accommodations such as school restrooms and locker rooms. Additionally, a joint letter from Governor Malloy and SDE Commissioner Dianna R. Wentzell was sent to all public school superintendents in the state directing schools to honor transgender students’ choice of facility. See our latest Connecticut Education Law Blog article for more details about these recent legal developments.