On February 12, 2018, BuzzFeed News issued an article detailing an interview with U.S. Department of Education (USDOE) officials wherein the USDOE spokesperson outlined the department’s policy on how it would handle transgender student complaints. The details of this article, and statements made by the USDOE spokesperson, were later confirmed by NPR’s Education News Desk. (Please note that although BuzzFeed is not typically a news source for Ennis Britton, the details of the interview and the fact that the details were confirmed by another news source renders this information useful and informative.)

Essentially, the USDOE spokesperson has said that the USDOE will not investigate or take action on any complaints filed by transgender students who are banned from restrooms that match their gender identity. If the complaint alleges that the transgender student has been bullied, harassed, or punished due to his or her gender nonconformity, the USDOE will investigate and possibly take action against a school district.

The USDOE has been noticeably silent on issues dealing with transgender students since it withdrew the May 13, 2016, Dear Colleague Letter on transgender students on February 22, 2017. The withdrawal letter can be found here. This recent interview with the USDOE spokesperson does nothing other than lay out how the USDOE will handle complaints from transgender students. This does not mean that transgender students can never bring a claim for discrimination based on their gender identity or their failure to conform to sex-based stereotypes, but it does mean that such claims will be filed in the courts as opposed to the USDOE.

This is a rather strange parsing for the USDOE and a fine line to walk in terms of what will be classified as bullying, harassment, and punishment. (See the Seventh Circuit Court case discussed below.) Districts need to be aware that if a student claims that he or she has been bullied, harassed, or punished because of being transgender or because of failure to conform to sex-based stereotypes, such a complaint must be processed and investigated pursuant to the school district’s anti-discrimination policies. Failure to do so or to take such complaints seriously could result in complaints filed with and investigated by the USDOE.

The remaining issue is accommodations – specifically, bathroom and changing/locker room access. The USDOE’s statement has made clear that this battle will occur in courts around the country as opposed to the USDOE. Therefore, it is important to see where the courts’ decisions are falling with respect to this issue around the country.

Remember, the U.S. Supreme Court canceled oral arguments in G.G. v. Gloucester County School Board, 82 F.3d 709 (4th Cir. 2016), vacated and remanded, 137 S. Ct. 1239 (U.S. 2017), remanded, 869 F.3d 286 (4th Cir. 2017), after the U.S. Departments of Education and Justice revoked the May 13, 2016, guidance from the previous administration. Based on the rescission, the U.S. Supreme Court remanded the case back down to the Fourth Circuit Court of Appeals to be reconsidered. The student in that case graduated in June 2017 and has since withdrawn his motion for a preliminary injunction and filed an amended complaint for nominal damages. The former student seeks a declaration that the school board violated his rights under Title IX and the Equal Protection Clause, as well as a permanent injunction preventing the school board from excluding him from using the restrooms when he is on school grounds.

In December 2016, the Sixth Circuit Court of Appeals, relying on the now-rescinded advice, agreed with a lower court decision from the United States District Court for the Southern District of Ohio regarding how an Ohio school district treated an eleven-year-old transgender student. The courts found that the eleven-year-old student had a strong likelihood of success in her claims against the Ohio school district and therefore should be allowed to use the school restrooms that correspond to her gender identity and otherwise be treated like other female students during the pendency of the lawsuit. However, please note although these courts have great impact and control in Ohio, they relied on the now-rescinded guidance from the USDOE, and how these courts will rule on the same issue is uncertain now that the guidance has been rescinded. Further, this case still remains to be fully and finally litigated; both the Southern District of Ohio and the Sixth Circuit ruled only on motions for an injunction; they have not yet ruled on the substantive issues at hand. This case is still pending.

Additionally, although not controlling in Ohio, the Seventh Circuit Court of Appeals issued a decision in May 2017 (after the USDOE rescinded its previous guidance) that may be informative both in Ohio and around the country. The Seventh Circuit Court found that a school district was sex stereotyping a transgender student when it required the transgender male student to use the girls’ restroom or a private restroom. In its decision, the court held that a “policy that requires an individual to use a bathroom that does not conform with his or her gender identity punishes that individual for his or her gender non-conformance, which in turn violates Title IX” (emphasis added). The school district filed a petition for a writ of certiorari with the U.S. Supreme Court requesting that the Court overturn the lower court’s decision. The U.S. Supreme Court granted this petition; however, the parties have since settled their dispute, agreeing on a payment of $800,000 to the student (and presumably the attorneys for fees), as well as permission for the student to use the men’s restroom if he returns to the district as an alumnus (the student graduated and no longer would be in daily attendance). As a result, although the U.S. Supreme Court will not be ruling on this case, the Seventh Circuit Court’s decision in favor of accommodating the transgender student stands.

Conclusion

In sum, the “new” information out of the USDOE does not change anything for school districts. The USDOE has simply communicated how it will handle complaints from transgender students. If the complaint deals with accommodations (restrooms, locker rooms, etc.), the USDOE will not accept the cases; but if the complaint has to do with bullying, harassment, or punishment based on transgender status, it will.

Instead, the question of whether and how to provide accommodations to transgender students will be a matter to be litigated through the court system in the years to come. For additional advice on handling requests for accommodations for transgender students or working through complaints of discrimination, please contact an Ennis Britton attorney for assistance.