On June 6, 2017, Acting Assistant Secretary for Civil Rights, Candice Jackson, issued instructions to the directors of the regional offices of the U.S. Department of Education’s Office of Civil Rights (OCR) regarding complaints involving transgender students. The instructions come in response to three events that have impacted transgender law in public schools: (1) the withdrawal of two guidance documents by the U.S. Departments of Education and Justice; (2) the dismissal of State of Texas v. United States; and (3) the remand of Gloucester County School Board v. G.G.

On February 22, 2017, the U.S. Departments of Education and Justice issued a letter withdrawing the statements of policy and guidance reflected in the May 13, 2016 “Dear Colleague Letter” (DCL) on the OCR’s enforcement of Title IX with respect to transgender students based on gender identity, as well as a related January 7, 2015 letter. On March 3, 2017, the U.S. District Court for the Northern District of Texas dismissed, without prejudice, State of Texas v. United States, a multi-state lawsuit challenging the May 2016 DCL, and dissolved the preliminary injunction that had restricted OCR’s enforcement of Title IX with respect to transgender individuals’ access to “intimate” facilities such as restrooms. Three days later, the U.S. Supreme Court vacated and remanded Gloucester County School Board v. G.G., a case involving Title IX as it relates to transgender students’ access to restrooms. The Court remanded the case to the U.S. Court of Appeals for the Fourth Circuit for further consideration in light of the letter issued by the Departments withdrawing the May 2016 DCL.

Because of these events, Jackson says that the OCR can no longer rely on the policies set forth in the May 2016 DCL or the January 2015 letter to a private individual as the sole basis for resolving a complaint. However, according to the February 2017 letter, “withdrawal of these guidance documents does not leave students without protections from discrimination, bullying, or harassment.” Instead, the OCR should rely on Title IX regulations, as interpreted in federal court decisions, and OCR guidance documents that remain in effect, in evaluating complaints of sex discrimination against individuals whether or not the individual is transgender. Further, Jackson says that the OCR may still assert subject matter jurisdiction over, and open for investigation, the following allegations if other jurisdictional requirements are met under the OCR’s Case Processing Manual (CPM):

  • Failure to promptly and equitably resolve a transgender student’s complaint of sex discrimination.
  • Failure to assess whether sexual harassment or gender-based harassment of a transgender student created a hostile environment.
  • Failure to take steps reasonably calculated to address sexual or gender-based harassment that creates a hostile environment.
  • Retaliation against a transgender student after concerns about possible sex discrimination were brought to the recipient’s attention.
  • Different treatment based on sex stereotyping.

In light of the above, the OCR asserts that it will approach each of these types of cases with great care and individualized attention before reaching a dismissal conclusion. OCR has emphasized that withdrawal of the May 2016 and January 2015 guidance documents does not leave students without protections, and the OCR remains committed to investigating all claims of discrimination, bullying and harassment against those who are most vulnerable in schools. However, at the present time, this area of the law remains very unsettled and school districts are cautioned to tread carefully when addressing issues related to the rights of transgender students. School districts should also be cognizant of state and local laws that may impact the rights of transgender students.

Christina Peer is a partner in the Education Services group of Cleveland-based Walter | Haverfield LLP.