ED, DOJ Rescind Obama-Era Guidance Regarding Transgender Students

The U.S. Departments of Education (ED) and Justice (DOJ) jointly issued a “Dear Colleague” letter (DCL) Wednesday evening rescinding the guidance published last May by the Obama Administration requiring schools to allow transgender students to use the restrooms and other school facilities that correspond to their gender identity.


The Obama Administration’s guidance took the position that Title IX of the Education Amendments of 1972 – the law that prohibits sex discrimination in federally-funded education programs – also protects students from discrimination based on gender identity. The DCL released by the Trump Administration, however, notes that the former guidance failed to adequately explain the legal justification for that position. ED and DOJ also discuss the legal confusion surrounding the Obama-era guidance, including conflicting opinions from the U.S. Appeals Court for the Fourth Circuit and a federal district court based in Texas.


In addition, the DCL states that “there must be due regard for the primary role of the States and local school districts in establishing educational policy,” consistent with recent statements made by White House Press Secretary Sean Spicer that President Trump has long-believed that the issue in question should be handled at the State and local level.


The letter also emphasizes that although this guidance has been withdrawn, schools must still ensure that lesbian, gay, bisexual, and transgender students “are able to learn and thrive in a safe environment” and are protected from discrimination, bullying, and harassment. In a statement accompanying the release of the DCL, Secretary of Education Betsy DeVos stated: “At my direction, the Department's Office for Civil Rights remains committed to investigating all claims of discrimination, bullying and harassment against those who are most vulnerable in our schools.”


Given that a federal district court in Texas issued a nationwide pause on enforcement of the guidance last year while a case brought by multiple States proceeded, the withdrawal of the guidance does not change the status quo for States and districts.


DeVos was reportedly initially opposed to swiftly revoking the guidance due to concerns about how it could harm transgender students, but she eventually signed off on the letter due to pressure from Attorney General Jeff Sessions and President Trump. White House Press Secretary Sean Spicer, however, reported during Wednesday’s press briefing that the cabinet secretaries were only in disagreement on timing and wording of the letter and that DeVos backed the move completely.


The U.S. Supreme Court is slated to hear arguments next month on a case brought on behalf of a transgender student from Gloucester County, Virginia. It remains unclear exactly how the rescission of this guidance could affect that case. An attorney from the American Civil Liberties Union who is representing the student has said that the legal team plans to focus on the question of the original meaning of Title IX as opposed to emphasizing deference to agency interpretation.


The “Dear Colleague” letter is available here.


Caitlin Emma, “Spicer Denies Cabinet Feud Over Transgender Student Protections,” Politico, February 22, 2017.
Evie Blad, “Trump Administration Rescinds Transgender-Student Guidance,” Education Week: Rules for Engagement, February 22, 2017.

About the Author

Kelly Christiansen is an associate with the Washington, DC law firm of Brustein & Manasevit, PLLC. Established in 1980, the Firm is nationally recognized for its federal education regulatory and legislative practice, providing legal advice regarding compliance with all major federal education programs as well as the federal grants management requirements, including the Education Department General Administrative Regulations (EDGAR). In addition, they work with agencies on federal spending flexibility, allowability, policies and procedures, audit defense and resolution and legislative updates. The Firm provides government relations services for the National Title I Association.