U.S. Department of Education Confirms that the Federal Government Will Not Pursue Title IX Complaints by Transgender Students Based on Facility Access

03.26.2018

Under the Obama Administration, the federal government issued national policy guidance interpreting Title IX of the Education Amendment of 1972 (Title IX) as requiring educational institutions to allow students access to facilities, i.e., restrooms and lockers rooms, consistent with their gender identity regardless of their sex assigned at birth. However, in February 2017, the Trump Administration withdrew and rescinded this Obama Administration policy guidance, indicating that it needed to “more completely consider the legal issues involved” regarding the rights afforded to transgender students under Title IX with respect to access to facilities based on gender identity.

While this reversal by the federal government all but confirmed that it would no longer investigate Title IX claims of discrimination based on access to facilities, the Trump Administration was not entirely clear on what its final interpretation of Title IX’s protections would be in light of its statement that it needed to look more closely at the legal issues involved.

During a March 20, 2018 congressional hearing, Secretary Betsy DeVos of the U.S. Department of Education (DOE) confirmed that denying students access to facilities, such as restrooms and locker rooms, based on their gender identity will not be investigated as a form of discrimination under Title IX.

In February 2017, the Trump Administration did state that its withdrawal and rescission of the Obama Administration’s policy guidance did “not leave students without protections from discrimination, bullying, and harassment,” adding that “[a]ll schools must ensure that all students, including LGBT students, are able to learn and thrive in a safe environment.”

California law, however, is unchanged, and still requires school districts to allow facility use and academic participation based on gender identity. This is true despite changes occurring at the federal level. Thus, California school districts should maintain a clear policy allowing facility access based on gender identity and ensure the school community is aware of the rights and anti-discrimination protections afforded to transgender students under State law and policy.

Recent History of Presidential Administrations’ Interpretation of Title IX Protections
Title IX requires educational institutions that receive federal funds to prohibit and protect against discrimination on the basis of sex. On May 13, 2016, the Obama Administration issued national policy guidance in the form of a Dear Colleague letter (the “Obama DCL”) interpreting Title IX’s protection against discrimination to apply to transgender students and also specifically required educational institutions to allow access to students to facilities consistent with their gender identity. However, on February 22, 2017, the Trump Administration issued its own Dear Colleague Letter (the “Trump DCL”) which withdrew and rescinded the Obama DCL. The Trump DCL did not explicitly state the federal government’s official position regarding its interpretation on the rights of transgender students under Title IX to access facilities consistent with their gender identity. Instead, the Trump DCL announced that the administration wanted “to further and more completely consider the legal issues involved.”

While many presumed the federal government would no longer pursue discrimination claims based on access to facilities, there was no official stated position beyond the Trump DCL. On March 20, 2018, Secretary DeVos made clear during a congressional hearing the DOE will not investigate complaints of discrimination based on the denial of access to facilities, such as restrooms and locker rooms, based on gender identity.

Even though the Trump Administration will no longer investigate Title IX complaints involving access to facilities based on gender identity, the DOE confirmed last month that it continues to interpret Title IX as protecting transgender students from harassment outside of the facility access context.

The Current Landscape
As noted above, the actions of the Trump Administration, including the issuance of the Trump DCL, do not change California’s anti-discrimination laws and policies concerning access to facilities or program participation based on a student’s gender identity. Under California Education Code section 221.5, all school districts are required to grant students access to facilities and allow participation in activities based on their gender identity. While the federal government may not hold school districts in violation of Title IX for refusing to grant access to facilities or programs based on gender identity, California law still requires such access to transgender students. Thus, California school districts must adopt policies consistent with state law to ensure access to facilities and programs based on gender identity, in addition to other anti-discrimination policies protecting students as a general matter from discrimination or harassment based on gender identity, gender expression, or sexual orientation. As discussed above and consistent with California law, the federal government will continue to address other claims of discrimination against transgender students, including instances harassment and bullying.

If you have any questions about these requirements or if we could provide any assistance in complying with federal and state law on this important issue, please feel free to contact us.

*This Alert has been updated by the Authors on March 27, 2018.