New Administration Signals Change on Support of Transgender Guidance

On Friday, the Trump administration signaled that it will not defend the guidance given by the U.S. Department of Justice (DOJ) and Department of Education (DOE) last May on transgender students’ rights under Title IX of the Education Amendments of 1972. The prior administration’s guidance had confirmed that the DOJ and DOE would interpret a student’s “sex” based on gender identity, or that person’s subjective or internal gender, as opposed to sex assigned at birth. This interpretation was the legal basis for DOE’s controversial challenges to school districts’ federal funding where transgender students’ access to restrooms or locker rooms was limited.

Last August, a Texas federal court entered a nationwide injunction barring the DOE and DOJ from enforcing the transgender guidance. The injunction was based on the narrow legal issue of whether the DOE’s transgender guidance was issued in a manner that violated procedure rules; not on the fundamental policy issue. The DOE and DOJ challenged the nationwide injunction by appealing the Texas decision to the Fifth Circuit Court of Appeals. On Friday, DOE and DOJ changed course by withdrawing the request that the Texas court’s injunction is lifted. In the short term, this means that the nationwide injunction will remain in place unchallenged.

The administration’s change, of course, comes as the Supreme Court is set to hear arguments in the landmark case of G.G. v. Gloucester County School Board on March 28, 2017. In G.G., a high school student whose birth-assigned sex is female but whose gender identity is male sued his Virginia high school to gain unrestricted bathroom access. The Fourth Circuit Court of Appeals decided the case in favor of the student based on the DOE’s interpretation of Title IX that is now in question.

The legal parameters that govern these issues are unsettled and rapidly evolving. However, the legal controversy does not impact many of the supports provided by Illinois school districts for transgender students and their families, including the use of preferred names and pronouns, prohibitions on bullying, and dress code accommodations.