On June 6, 2017, Candice Jackson, Acting Assistant Secretary for Civil Rights for the U.S. Department of Education, sent the Office for Civil Rights (OCR) Regional Directors a memorandum outlining how to evaluate and investigate complaints involving students who identify as transgender. Under the Obama Administration, the Department of Education and Department of Justice issued a joint Dear Colleague Letter which provided specific information regarding Title IX recipients’ obligations and examples of how transgender students’ complaints of sex discrimination should be evaluated. On February 22, 2017, the Department of Education withdrew the 2016 Dear Colleague Letter, and now Jackson’s memorandum serves as guidance. Continue Reading OCR Issues New Guidance Seeking to Address Transgender Student Complaints
The extension of civil rights protections to transgender and gender non-conforming individuals is rapidly evolving. These issues are playing out in schools across the country, and a recent Seventh Circuit decision seems to suggest that transgender students will be afforded Title IX and Fourteenth Amendment protections.
In Whitaker v. Kenosha Unified School Dist. No. 1., No. 16-3522, 2017 WL 2331751 (7th Cir. 2017) the Seventh Circuit affirmed a Wisconsin District Court’s decision granting a transgender student a preliminary injunction to use the bathroom that corresponds with his gender identity, rather than his biological sex. Continue Reading 7th Circuit Orders School District to Allow Transgender Student Access to Restroom that Corresponds with Student’s Gender Identity, Not Biological Sex
As we noted was a possible outcome in our prior analysis of the Trump Administration’s withdrawal of the Obama-era guidance on facilities use by transgender students, the Supreme Court has remanded Gloucester County School Board v. G.G. without issuing a decision. Prior to this remand order, the Court was set to decide whether Title IX required schools to allow access to sex-segregated facilities according to each student’s “internal sense of gender” as opposed to their “biological gender,” as specified in the school policy at issue. The Supreme Court’s views on that topic will remain unknown until (and if) the Court elects to review another case presenting the same question. To learn more, please visit our Higher Education Legal Insights blog.
In a joint letter issued February 22, 2017, the Departments of Education (ED) and Justice (DOJ) withdrew prior Title IX guidance from the Obama administration that required schools receiving federal funding to allow students to use sex-segregated facilities according to their gender identity, as opposed to their anatomical birth sex. To learn more, please visit our Higher Education Legal Insights blog.
On Friday, February 10, 2017, the Trump Administration announced that the United States will no longer challenge the injunction against enforcement of the joint Department of Justice and Department of Education guidance on treatment of transgender students that was issued last year. We expect further developments in the coming weeks and months, but for now see our Higher Education Legal Insights post on this issue.
On October 18, 2016, a federal magistrate judge in Illinois issued a recommendation that the Federal District Court deny a motion seeking to deny a transgender
student access to the girl’s locker room. The School District’s 2013 policy gave transgender students access to whichever restroom facilities most aligned with their gender identity, but did not extend that access to locker rooms. A transgender student, who identifies as female, filed an administrative complaint alleging Title IX violations with the U.S. Department of Education’s (ED) Office for Civil Rights resulting in a resolution agreement called the “Locker Room Agreement.” This agreement entitled only this particular student to use the girl’s locker room and also included measures for all students to maintain their privacy. Continue Reading Redefining Sex: Illinois Magistrate Makes Recommendation to Protect School’s Balanced Transgender Locker Room Policy
Gavin Grimm, a transgender male high school student in Virginia, convinced the Fourth Circuit Court of Appeals that he must be allowed to use the men’s bathroom at school; however, the Supreme Court recently issued a stay, which is to say to Grimm, “Let’s wait a minute; is this really required by federal law?”
As schools attempt to navigate the varied, and often conflicting, views and authorities regarding transgender students’ use of bathrooms and locker rooms, one thing all sides can agree on is that clear guidance from SCOTUS would help schools know where they stand. That guidance may be coming next term. This is particularly true now that a federal district court in Texas has disagreed with the Fourth Circuit. Continue Reading Supreme Court Issues Stay Regarding Transgender Student Bathroom Order