The U.S. Departments of Justice and Education have withdrawn and rescinded written policy and guidance statements related to transgender students that had been issued by the Departments in 2015 and 2016, including the “Dear Colleague Letter on Transgender Students” issued last May, in order to “further and more completely consider the legal issues involved.” The Departments will no longer rely on the views expressed in those documents.
The now-withdrawn statements had taken the position that Title IX of the Education Amendments of 1972 and Title IX’s implementing regulations, which expressly prohibit discrimination on the basis of sex, require school districts to provide students with access to sex-segregated facilities (such as restrooms and locker rooms) on the basis of gender identity.
In explaining the decision to withdraw the previous guidance, a new “Dear Colleague Letter” , issued this week (on 2/22/17) states that the former guidance did not “contain extensive legal analysis or explain how the position is consistent with the express language of Title IX, nor did they undergo any formal public process.” The reference to a “formal public process” appears to relate to the fact that the now-withdrawn guidance was not proposed and adopted using the formal process for creating federal administrative regulations, which includes public notice and public comment requirements.
The new Dear Colleague letter goes on to emphasize the role of states and local districts in establishing educational policy, but also asserts that:
“this withdrawal of the guidance documents does not leave students without protections from discrimination, bullying, or harassment. All schools must ensure that all students, including LGBT [lesbian, gay, bisexual and transgender] students, are able to learn and thrive in a safe environment. The Department of Education Office for Civil Rights will continue its duty under law to hear all claims of discrimination and will explore every appropriate opportunity to protect all students and to encourage civility in our classrooms. The Department of Education and the Department of Justice are committed to the application of Title IX and other federal laws to ensure such protection.”