On May 13, 2016, the U.S. Department of Education’s Office for Civil Rights and the U.S. Department of Justice’s Civil Rights Division issued a joint guidance document regarding transgender students. The guidance, which is not in the form of a regulation but rather a Dear Colleague Letter, states, “The Departments interpret Title IX to require that when a student or the student’s parent or guardian, as appropriate, notifies the school administration that the student will assert a gender identity that differs from previous representations or records, the school will begin treating the student consistent with the student’s gender identity. Under Title IX, there is no medical diagnosis or treatment requirement that students must meet as a prerequisite to being treated consistent with their gender identity.”

Regarding restrooms and locker rooms, the guidance states, “A school may provide separate facilities on the basis of sex, but must allow transgender students access to 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. A school may, however, make individual-user options available to all students who voluntarily seek additional privacy.”

The legal landscape surrounding the rights of transgender students is becoming increasingly complex, and, at times, contradictory. Although the Department of Education’s and Department of Justice’s position on Title IX’s application to transgender students is clear, it does not constitute binding authority. In the meantime, there is pending litigation around the country which will also require the federal courts to weigh in on this issue, and interpretations of the various courts may or may not be consistent with the Departments’ interpretation.

In particular, there have been new developments in G.G. v. Gloucester County School Board. As was discussed in our previous Legal Update, a three-judge panel of the Court of Appeals for the Fourth Circuit recently reversed a lower court’s dismissal of a transgender student’s Title IX claim, concluding that the lower court did not give the appropriate deference to the Department of Education’s interpretation of the Title IX regulations. Shortly after the Fourth Circuit’s decision was issued, the Defendant School Board petitioned for an en banc review, so that all of the judges on the Fourth Circuit could participate, rather than just a three-judge panel. The petition is still pending at this time.

Also on the heels of the Fourth Circuit’s decision in the Gloucester case, a group of students and parents in Palatine, Illinois filed a civil rights action in federal court to invalidate a resolution agreement reached between the Township High School District and the Office for Civil Rights (OCR). The Palatine case involved a transgender girl’s access to locker room facilities in school. After OCR decided that the district violated Title IX by denying the student access to the locker rooms designated for female students, the district and OCR entered into a resolution agreement. The agreement provided that the district would give the student access to the locker room facilities designated for female students. It further provided that the district would take steps to protect the privacy of its students by installing and maintaining sufficient privacy curtains (private changing stations) within the girls’ locker rooms to accommodate any student who wished to be assured of privacy while changing.

In the lawsuit seeking to invalidate the Palatine agreement, the plaintiffs claim that the privacy rights of the other students in the locker room are not protected by the agreed upon measures, and that the agreement violates Title IX, the Administrative Procedure Act, the students’ fundamental rights to privacy, the Illinois and Federal Religious Freedom Restoration Acts, and the First Amendment Free Exercise of Religion Clause. Because this case is in the 7th Circuit, a decision by the Federal Appeals Court would ultimately govern Wisconsin school districts.

In addition, North Carolina and the Department of Justice are currently engaged in litigation over state legislation which prohibits individuals from using a bathroom that does not correspond to their biological sex.

While these cases work their way through the courts, school districts should carefully review the joint guidance issued by the Department of Education and Department of Justice, as well as their existing facilities. They should also review their current school board policies to determine how they apply to transgender and gender nonconforming students. Finally, school districts should also consider developing guidelines or procedures that will govern issues relating to transgender and gender nonconforming students, such as access to locker rooms, restrooms, and the impact of any existing Section 504 or IDEA status. If you have questions about this legal update or would like assistance reviewing or drafting policies or procedures, please contact Gary Ruesch at gruesch@buelowvetter.com or 262-364-0263, Alana Leffler at aleffler@buelowvetter.com or 262-364-0267, or your Buelow Vetter attorney.