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SCOTUS May Still Uphold Transgender Bathroom Rights in Schools

After the Trump Administration’s first swing at Title IX protections, the Supreme Court of the United States (SCOTUS) may still rule that the law requires educational institutions to allow transgender students to use the bathroom they associate with their gender identity. In the coming weeks, it’s certain that transgender students of all ages, their parents, advocacy groups, and the public at large will be waiting to find out how this is handled by the federal judiciary.

Trump Administration Rescinds Title IX Guidance Letter

On February 22, 2017, the Department of Education and the Department of Justice issued the Trump administration’s first “Dear Colleagues” letter.1 The purpose of the letter was not to issue guidance on a new rule or expectations, but rather to rescind previous guidance issued by the departments in 2015 and 2016. Those guidance letters instructed that Title IX protections against sex discrimination include discrimination based on gender identity and, therefore, schools must legally allow students to use the restroom, locker room, or other sex-segregated facilities associated with the gender with which they identify themselves.

The new guidance issued last month did not offer any replacement interpretation or instructions for schools. It justified the rescinding of the previous guidance by stating that the Obama Administration’s stance was not supported by legal analysis or formal public support and that states should have a “primary role” in determining what is right for their own students.

The letter supported its states’ rights position by citing two different federal court rulings from two different states:

The U.S. Court of Appeal for the 4th Circuit ruled in a Virginia case that “sex” was an ambiguous term in Title IX and agreed with the interpretation in the federal guidance that transgender bathroom rights should be protected under Title IX.

A Texas federal district court ruled that “sex” is an unambiguous term meaning biological sex and that the guidance policy should not be followed without formal rulemaking.

Due to differing opinions among the states, the new administration is asserting that each state should make its own decisions regarding the rights of transgender students.

Significantly, the new guidance does nothing to rescind Title IX itself or its protections. It simply casts doubt on the interpretation of the law to include the right of transgender students to use certain bathrooms.

SCOTUS Reactions to the Withdrawal of Federal Protections

The new “Dear Colleagues” letter was issued one day before briefs were due to the Supreme

Court from attorneys in Gloucester County School Board v. G.G.,2 which is the above-mentioned 4th Circuit case. In this matter, the school board had appealed the appellate decision and SCOTUS agreed to rule on the matterhopefully, to set a firm precedent for nationwide protections for transgender students under Title IX.

In light of the new guidance, however, SCOTUS requested that each side of the case submit responses detailing how they thought the new change in policy impacted the case and their arguments. When those short briefs were submitted on March 1, it was learned that both sides wanted to proceed with the matter in front of SCOTUS3 so the Court could decide whether the school board’s bathroom policy (which was based on biological sex) violated Title IX. They argued that any interpretation or guidance by the Departments of Justice and Education are separate from the language of the law itself, so the Supreme Court should still rule on that issue.

We do not know when SCOTUS may decide how it will proceed in the matter, though the Court will likely announce its intentions well before the scheduled oral arguments on March 28th.

If you believe you have been discriminated against in violation of Title IX and you would like to learn more about your legal rights, please contact Duffy Law in Connecticut today. We will stand up for your rights under the law.

UPDATE: On March 6th, the United States Supreme Court issued an order4 remanding the case to the 4th Circuit Court of appeals for further consideration in light of the Dear Colleague Letter5 issued by the DOJ and DOE on February 22 withdrawing the Obama-era guidance on transgender bathroom rights. This means that, at this time, the Court will not make a decision regarding the issue, leaving Title IX’s applicability to transgender students an open question.






Felice Duffy

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Attorney At Duffy Law

Attorney Felice Duffy served as an Assistant United States Attorney for ten years after beginning her legal career at two prestigious firms (one in CT and one in NY) and then clerking for two federal judges. A life-long Title IX advocate, she brought a legal action under the then-new Title IX statute against UCONN while an undergraduate to compel the creation of its women’s varsity soccer program. She went on to become a first-team Division I All-American, was selected to be on the first U.S. National Women’s Team, and spent 10 years as Head Coach of the Yale women's soccer team. Attorney Duffy has Ph.D. in Education/Sports Psychology and has spoken to, and conducted trainings for, over 50 schools and organizations on a wide range of topics involving athletics, the law, and social justice. You can reach Felice at (203) 946-2000.