February 22, 2017: Feds Rescind Guidance on Transgender Students

Today, a “Dear Colleague” letter (“DCL”) issued jointly by the U.S. Department of Justice and the U.S. Department of Education rescinded the much-debated guidance on transgender students in schools issued by the Departments in May 2016.  In a two-page letter, the Departments state that states and local school districts have the primary role in establishing such educational policy.

The May 2016 Guidance specified that schools must permit transgender students to use restrooms and locker rooms consistent with their gender identity in order to comply with Title IX of the Education Amendments of 1972.  The now-withdrawn Guidance stated that schools must treat a student consistent with the student’s gender identity upon receiving notice from the student or the student’s parent/guardian that the student’s gender identity differed from previous representations or records.  In particular, the Guidance indicated that schools could not require transgender students to use restrooms or locker rooms inconsistent with their gender identity or to use individual-user facilities when other students were not required to do so.

The February 22, 2017, DCL notes that the May 2016 Guidance has resulted in “significant litigation” regarding students’ use of school restrooms and locker rooms.  The DCL explains that the decision to rescind the Guidance was done in order to further consider the legal issues.  The DCL then explains that, going forward, the Departments will not rely on the views expressed in the May 2016 Guidance.

Finally, the Departments did note that the withdrawal of the May 2016 Guidance does not impact protections that LGBT students have against discrimination, harassment and bullying.  Schools are still required to provide all students with a safe environment in which to learn, and the Department of Education’s Office for Civil Rights will continue to investigate allegations of discrimination against LGBT students.

The copy of the February 22, 2017, DCL is available at:

https://www.justice.gov/opa/press-release/file/941551/download

Should you have any questions about this guidance and how it may impact your current policies, procedures, or practices with respect to transgender students, do not hesitate to contact us by e-mail or phone (630) 313-4750.