On February 22, the U.S. Departments of Education and Justice withdrew their previous joint guidance that provided information for schools on the departments’ interpretation of the rights of and protections for transgender students under Title IX. Noting that the “interpretation has given rise to significant litigation regarding school restrooms and locker rooms,” the Departments said “there must be due regard for the primary role of the States and local school districts in establishing educational policy. In these circumstances, the Department of Education and the Department of Justice have decided to withdraw and rescind the…guidance documents in order to further and more completely consider the legal issues involved. The Departments thus will not rely on the views expressed within them.”

The Departments also stated that “the withdrawal of the guidance document does not leave students without protections from discrimination, bullying or harassment.” This was echoed by Secretary of Education Betsy DeVos in a statement released with the new guidance. Secretary DeVos said she is directing the Department of Education’s Office for Civil Rights to remain “committed to investigating all claims of discrimination, bullying and harassment against those who are most vulnerable in our schools.”

The agencies also informed the U.S. Supreme Court that they were taking this action, as Gloucester County School Board v. G.G. is scheduled for oral arguments on March 28. In response, the Court requested that both parties to the case “submit their views on how the case should proceed” by letter to the Court no later than March 1. Yesterday, both sides urged the court to keep the case on the docket and render a decision. The school board in the case, however, did ask the court to delay oral arguments to allow the solicitor general’s office time to properly develop and file a brief on behalf of the Trump administration.

OSBA continues to encourage districts to work with individual students requesting accommodations on a case-by-case basis through interaction with the student and the district’s board counsel. For additional information, please contact OSBA’s division of legal services. For specific information about the impact of these decisions on your district, please contact your district’s legal counsel.

Posted by Sara Clark on 3/2/2017