A joint letter, commonly referred to as the “Dear Colleague” letter, from the U.S. Departments of Education and Justice was sent to schools today, Friday, May 13, 2016, with guidelines for every public school district in the country to allow transgender students to use the bathrooms that match their gender identity.  (A link to the letter is available here.)
The declaration describes what schools should do to ensure that none of their students are discriminated against. The goal of the directive is to ensure that “transgender students enjoy a supportive and nondiscriminatory school environment,” the Obama administration reported on Thursday.
The letter does not have the force of law, but it contains an implicit threat: Schools that do not comply with the Obama administration’s interpretation of the law could face lawsuits or a loss of federal aid. Justice and Education Department officials have repeatedly made clear that under their interpretation of Title IX, the federal anti-discrimination law in education, schools receiving federal funds may not discriminate based on a student’s sex, including a student’s transgender status.
Historically, courts have not adopted Office for Civil Rights (OCR) legal analysis on this issue. Indeed, many courts have held that sex discrimination protection under federal law does not automatically extend to transgender students and employees. However, a recent Fourth Circuit Court of Appeals decision has opened the door for reconsideration of the legal precedent, and court opinions in the lawsuits between North Carolina and the U.S. Department of Justice also may change the legal landscape.
For help in how your school can best address the guidelines, please contact your attorney or a member of the Education Group of Bose McKinney & Evans.