LGBTQ

On February 22, 2017, the United States Department of Justice and Department of Education issued a joint “Dear Colleague” guidance letter withdrawing two of the Obama Administration’s policy statements and guidelines regarding protections for transgender students under Title IX.

California Law

There are legal protections for transgender students under California law. California law prohibits any public or private educational institution that receives state financial benefits or assistance from discriminating against any student on the basis of gender, gender identity or gender expression. (Cal. Education Code Section 220.)

This means that private schools receiving state financial benefits or assistance (such as Cal Grants) must provide students access to sex-segregated restrooms and locker rooms that correspond to their gender identity asserted at school. While institutions may provide alternative “gender neutral” facilities, no student may be compelled to solely use such a restroom or facility. The discomfort of other students is not a reason to deny equal access to transgender students. Institutions should further ensure equal access to programs and activities.

In the meantime, private higher education institutions in California and nationwide should seek legal counsel for any concerns regarding discrimination, bullying or harassment of transgender students.

Background and History

Title IX is a federal law that states: "No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” Under the Obama Administration, the Department of Education’s Office for Civil Rights had taken the position that Title IX’s prohibition against sex discrimination included discrimination based on gender identity and the failure to conform to stereotypical notions of masculinity or femininity. The Department of Education’s interpretation of Title IX was consistent with federal case law and the policy statements of other federal agencies.

Subsequently, in May 2016, the Obama Administration issued a guidance letter clarifying that Title IX requires access to sex-segregated activities and facilities based on gender identity. In particular, the Obama Administration took the position that schools may provide separate facilities, such as restrooms and locker rooms, on the basis of sex, but must allow transgender students to access such facilities consistent with their gender identity. “A school may not require transgender students to use facilities inconsistent with their gender identity or to use individual-user facilities when other students are not required to do so.”

The Obama Administration’s interpretation of Title IX engendered significant controversy and litigation. In August 2016, President George W. Bush-appointee Judge Reed O’Connor of the United States District Court for the Northern District of Texas issued a nationwide injunction halting the enforcement of President Obama’s guidelines regarding access to sex-segregated facilities for transgender students.

The Trump Administration’s guidance letter of February 22, 2017 cited this litigation as one of the motivating factors for withdrawing the prior guidance, including the May 2016 Dear Colleague Letter that set forth explicit protections for transgender students. The Administration did not offer any new policy statements or guidelines on the issue, but withdrew the Obama-era guidelines so that the Departments of Education and Justice could “more completely consider the legal issues involved.” In addition, the Administration stated that “there must be due regard for the primary role of the States and local school districts in establishing educational policy.” Because Judge O’Connor’s nationwide injunction remains in effect, Betsy DeVos, the Secretary of Education, issued a statement claiming that the decision to withdraw the Obama-era guidelines would have “no immediate impact” on transgender students. The Department of Justice weighed in on Thursday to clarify its position that discrimination, harassment and bullying against LGBT students would not be tolerated. Neither the U.S. Department of Education, nor the Justice Department offered further clarification on the guarantee of equal access to programs and activities under Title IX. We anticipate immediate litigation over this issue. In addition, the impact of the Trump Administration’s guidance letter remains to be seen as the United States Supreme Court is set to hear a case regarding Title IX’s protections for transgender students this Spring.