Trump Administration Pulls Back Transgender Interpretations

In a widely-reported action, the U.S. Department of Education and the U.S. Department of Justice have issued a joint letter withdrawing prior guidances on the rights of transgender students in the public school setting. The prior guidances had been issued in 2015 and 2016, and included the controversial directive to allow transgender students to use the restrooms of gender identification, regardless of their biological (birth) gender. The retraction takes the form of a "Dear Colleague" letter issued jointly by both agencies. By its own terms, the letter "does not add requirements to applicable law," but only withdraws the prior interpretations. Those wishing to read the actual text of the letter may do so by following this link.

It is important for educators to understand that this action does not change the law itself – only the current administration's interpretation of that law. This may mean less enforcement pressure from the U.S. Department of Education, but individuals and organizations remain free to pursue legal challenges for sex discrimination under Title IX, including transgender-based claims. Ultimately, it will be up to the courts to define a public school's obligations under Title IX. To the surprise of some, the United States Supreme Court has already accepted jurisdiction in a school "restroom case," with oral arguments currently scheduled for March 28th of this year. The lower-court ruling in that soon-to-be-landmark case (which was generally favorable to the student) can be accessed here.

This article was reprinted from the “Bricker Bullet” that went out to BASA (Buckeye Association of School Administrators) members. Bricker Bullets are provided to BASA members as an informational service courtesy of the law firm of Bricker & Eckler LLP, a BASA Premier Partner. They are not intended to serve as legal opinion with respect to any specific person or factual situation.