Late on February 22, the United States Departments of Education and Justice withdrew two pieces of guidance on transgender student rights that are at the heart of several cases in litigation. In a new two-page Dear Colleague letter, the Departments withdrew the January 2015 letter from James Ferg-Cadima at issue in Gloucester County School Board v. GG, scheduled for argument before the Supreme Court March 28, and the May 2016 Dear Colleague Letter enjoined by a Texas District Court in August 2016. Both of these withdrawn letters asserted the Obama administration's position that Title IX's protections against discrimination "on the basis of sex" include discrimination based on gender identity, which in turn would require schools to permit access to single-sex facilities including bathrooms based on gender identity.
Noting that "this interpretation has given rise to significant litigation regarding school restrooms and locker rooms...," including conflicting rulings by the 4th Circuit and the Texas District Court, the Departments said "there must be due regard for the primary role of the States and local school districts in establishing educational policy. In these circumstances, the Department of Education and the Department of Justice have decided to withdraw and rescind the above-referenced guidance documents in order to further and more completely consider the legal issues involved. The Departments thus will not rely on the views expressed within them." The new DCL also states that "the withdrawal of the guidance document does not leave students without protections from discrimination, bullying or harassment."
In a statement released with the new Dear Colleague Letter, Secretary of Education Betsy DeVos said that the responsibility to protect students and to ensure safe learning environments was "not merely a federal mandate, but a moral obligation no individual, school, district or state can abdicate." She said she is directing the Department of Education's Office for Civil Rights to remain "committed to investigating all claims of discrimination, bullying and harassment against those who are most vulnerable in our schools."