On February 22, 2017, the U.S. Department of Justice and the U.S. Department of Education issued a joint “Dear Colleague Letter” on the rights of transgender students. In doing so, the administration rolled back the protections provided to transgender students by the Obama administration.

The February 2017 “Dear Colleague Letter” specifically withdraws the May 13, 2016, “Dear Colleague Letter” on transgender rights issued by the Obama administration. The May 2016 “Dear Colleague Letter,” stated the administration’s position that Title IX’s prohibition on sex discrimination includes discrimination based on transgender status and provided school districts with guidance on handling a number of issues concerning transgender students. The February 2017 letter also withdraws an OCR letter issued in January 2015, which stated that “a school generally must treat transgender students consistent with their gender identity.”

The February 2017 “Dear Colleague Letter” states that the previous guidance documents, now withdrawn, “take the position that the prohibitions on discrimination ‘on the basis of sex’ in Title IX of the Education Amendments of 1972 and its implementing regulations require access to sex-segregated facilities based on gender identity. These guidance documents do not, however, 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.”

Nationwide litigation remains pending despite the issuance of the February 2017 “Dear Colleague Letter.” The Gloucester County School Board v. G.G. case is set for oral argument before the United States Supreme Court in late March. At a local level, we still await a decision on the Motion for Preliminary Injunction in the Students and Parents for Privacy case involving District 211. 

HLERK will continue to closely monitor the developments in this area of the law. Please contact Michelle Todd or Kaitlin Atlas with your transgender student inquiries.