Episode Seven: Update on Transgender Issues in Public Schools

A lot has happened since our last episode on districts’ obligations towards transgender students! Today we talk about the new administration’s rescission of the guidance issued by the Office for Civil Rights, the Gloucester case development, and what to watch for in the months ahead.

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Miriam: Welcome to Education Law Update, the podcast that entertains and informs. I’m Miriam.

Lisa: I’m Lisa.

Miriam: We are Ohio attorneys. We practice school law, and we get together every so often and we talk about the latest legal developments that affect anybody in the school; school districts, board members, administrators, anyone who works with the schools.

Lisa: Yes. Today we’re going to bring you a little bit of an update about how transgender issues have evolved recently with the new administration. Specifically, we had some guidance about transgender issues in schools that came out of the Office for Civil Rights that have since been rescinded.

Miriam: Exactly. Before the Trump administration came into existence, in May of 2016 the Office for Civil Rights issued guidance to school districts specifically about transgender students, and that guidance directed districts to treat students consistent with their gender identity. All children who identified as transgender male to female, female to male, were required to be treated by the school district, not based on their biological sex, but based on their gender identity, and this was–

Lisa: If you remember, this was really controversial.

Miriam: It was pretty controversial.

Lisa: Yes, we had numerous states, with Texas leading the charge, that even filed a lawsuit in federal court.

Miriam: Against the Obama administration. Then we had the United States Supreme Court. We’ll also talk about that in a minute. But once the Trump administration came into existence, this changed a little bit.

Lisa: Yes. In February, the Trump administration rescinded this guidance, basically, saying the Office of Civil Rights is not going to be enforcing this. This is not binding on any district. You don’t have to follow this guidance. It’s, basically, no more. It wasn’t appropriately vetted and researched and developed that it should stay in enactment.

Miriam: This guidance from May is now null and void. Also, I think this is important to Trump administration as, I think, all of us expected, emphasized the role that the states and school districts should play in education policy development as opposed to the federal government’s imposition as they see it on states and school districts.

Lisa: Right, it’s important to note, too, that in this press release, the new US Secretary of Education did emphasize that there is still a federal mandate and moral obligation to protect all students and ensure a safe and trusted environment and protect them from discrimination, bullying, harassment, but they are leaving this more to the state and local–

Miriam: Authorities. Lisa, I was really pleased to see that emphasis. It’s not like this administration is just leaving transgender students at the mercy of individual school districts and other students in their classes. The administration is emphasizing that there is a moral obligation to protect students from bullying and discrimination, all students including transgender peoples.

Lisa: But in true legal form, we still have an ambiguous interpretation left for that. What does that discrimination look like?

Miriam: We’re in the gray zone right now. We definitely are in the gray zone.

Lisa: This had some impact on a federal court case that had made its way up to the Supreme Court. We had talked about last time Gloucester County and–

Miriam: This is the case, right, Lisa? This is the case where there was a high school student, female to male transgender and wanted to be treated as a male, wanted to use the boys’ restroom. That community experienced a lot of conflict about this issue. They ended up going to court. It also ended up going straight up to the Supreme Court. The Supreme Court accepted the case, because the Supreme Court was going to take this opportunity and evaluate that May guidance, talk about the May guidance and determine whether or not it should apply to transgender students.

Lisa: In light of this recission of the OCR guidance, the Supreme Court actually decided not to really hear oral arguments or anything. It just remanded it back to the lower court saying, you need to look at this in light of the rescission of the guidance.

Miriam: Right, this is an unusual step, but it does certainly make sense if there’s no May guidance. If May guidance doesn’t apply, there’s really no reason to look at this. What it means specifically for that student, though, is that the school district still has to treat him in accordance with his gender identity, because that was the lower court’s decision. The school district was challenging it and the Supreme Court is not going to take that up. So the lower court’s decision actually stands.

Lisa: Those of you in Ohio, though, we talked about earlier this is going to go back to the states and local authorities, if you’re in Ohio in the Sixth Circuit, we do have some precedent, though, that still stands until there are any further developments with it.

Miriam: That’s Ohio and Kentucky, Tennessee and Michigan.

Lisa: Right, the Highland Court affirmed a decision of a Ohio District Court that found that a transgender student should be allowed to access the restroom of the gender to which the student identified and should also be called by the pronoun of the gender which the student identified. That’s the current precedent in the Sixth Circuit because the Sixth Circuit upheld that decision.

Miriam: Right, every school district in the Sixth Circuit, Ohio, Tennessee, like I said, Michigan, Kentucky, is obligated right now under this Sixth Circuit decision to treat transgender students in accordance with their gender identity, not with their biological sex. All of our audience listeners should research their own circuit, should research their own cases in coming to terms and making a decision about their obligations, school districts obligations to transgender children.

Lisa: Right, basically, school districts really just need to continue to watch the further developments with this. Make sure you know what your Board policies are, know what’s going on in your local area.

Miriam: Consult with your attorneys.

Lisa: Consult with your attorneys. Also, with all these issues, like we talked about before, think outside of the box, try to work collaboratively with students and families and try to avoid things becoming litigious.

Miriam: Try to avoid going to court. [laughs]

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Lisa: Until we have some further developments, we will bring you another update on these issues.

Miriam: Lisa and I hope that you really enjoyed this podcast and that you will give us a high rating. You’ll rate us well on iTunes or Stitcher, wherever you get your podcasts from. If you look at the notes for this show, you’ll see our email. Please drop us a line. Let us know what you thought and let us know what other topics you’d like to see discussed on this show. Have a great day.

Speaker 3: The content of this podcast is provided for general information purposes only. The podcast is not legal advice, does not create an attorney-client relationship and should not be relied upon in making legal decisions. Actions on legal matters should be taken only upon advice of legal counsel. Walter Haverfield does not guarantee the accuracy of information contained in this podcast.

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