Opinion Regarding The U.S. Department Of Justice And Department Of Education May 13, 2016 Dear Colleague Letter On Transgender Students

Over the past several years the U.S. Departments of Justice and Education (“DOJ/DOE”) have increasingly taken the position that administrative agency guidance in interpreting statutory and regulatory language must be followed.  DOJ/DOE have increasingly used this approach to thwart the impact and import of judicial precedent and correct statutory interpretation. On Wednesday, May 13, 2016, DOJ/DOE issued a joint Dear Colleague Letter on Transgender Students (“DCL”) stating that Title IX requires public school districts to permit transgender students access to restrooms, locker rooms, and athletic teams of their choosing based on their gender identity. The DCL, while provocative, is not without its problems. For starters, the DCL has been identified by the agencies as “significant guidance” which means it is supposed to have been subjected to and vetted by public comment and hearings, which does not appear to have happened.

Significant guidance or not, it is important to note, and know, that the DCL is just that – guidance. It is not law and does not carry the force of law. So, if that is true, and it is, what is the current status of the Title IX law regarding transgender students in the K‑12 setting? To answer that question some background and history is in order.

Title IX was enacted in 1972 and its implementing regulations were promulgated in 1975 and 1980. The provisions at issue are Title IX’s definition of “sex”, and recipients’ of federal funds, like public school districts, ability to separate students on the basis of sex based on that definition. There is no debate, indeed DOJ/DOE do not deny, that Title IX specifically authorizes public school districts to designate separate restrooms, locker rooms, shower facilities and athletic teams for men and woman based on anatomical sex. Indeed, every court that has addressed the question to this point, save one, has found that to be the case.

So, what prompted the recent and enhanced DOJ/DOE interest it expanding the definition of sex and last week’s DCL? On April 19, 2016, a three judge panel of the U.S. Court of Appeals for the 4th Circuit in Richmond, Virginia (“Panel”) reversed a federal district court’s decision dismissing a transgender student’s sex discrimination suit. The district court had dismissed the suit because it found the board of education policy preventing transgender students from using restrooms that did not coincide with their biological sex legally compliant with Title IX.  In G.G. v. Gloucester County School, 2016 WL 1567467 (4th Cir. April 19, 2016), the Panel ruled that the district court, in finding that Title IX explicitly authorizes separation of students by sex, failed to defer to DOE interpretation of Title IX regulations. At its core, the Panel’s decision turned on its determination that the definition of sex today is different than it was thirty years ago when the Title IX regulations were promulgated. According to the Panel, Title IX and its implementing regulations are, by today’s perceived definition of sex, ambiguous, and therefore courts must defer to the DOE’s interpretation/guidance in deciding questions regarding Title IX application and coverage. Once the Panel reached that determination, it concluded that, because Title IX regulations are ambiguous as to what “sex” means, the district court should have deferred to a January 7, 2015, opinion letter from the DOE, Office for Civil Rights (“OCR”) to Emily Prince (“Prince Ltr.”).  In the Prince Ltr, OCR opined that, when separating students on the basis of sex, school districts “must treat transgender students consistent with their gender identity.” Prince Ltr. at pg. 2. Relying on that language, the Panel reversed the district court and reinstated transgender student G.G.’s suit against the Gloucester County School Board.

Following the Panel’s April 19, 2016 ruling, on May 4, 2016, the Gloucester School Board filed a Petition for Rehearing En Banc, requesting that the entire 4th Circuit Court of Appeals, all seventeen (17) judges, rehear the case. The same day the 4th Circuit issued a mandate staying the April 19, 2016, Panel decision pending the full appellate court’s decision on Gloucester’s Petition for Rehearing.  We expect the 4th Circuit will grant the Petition for Rehearing and, following rehearing, the full Court will vacate the Panel decision and reinstate the district court’s dismissal of G.G.’s suit.

Ultimately this issue will find its way to the U.S. Supreme Court. The outcome there will depend on the composition of the Court when it considers the question. We believe that correct consideration and review of the issue should yield a decision that neither Title IX nor its implementing regulations are ambiguous and that Congress explicitly authorized school districts to separate access to restrooms, locker rooms and shower facilities on the basis of sex. Having so decided, the Court will conclude that it is for Congress to consider whether or not to expand Title IX’s definition of sex to include transgender individuals.

So, where does the foregoing leave school districts in Missouri in light of the May 11, 2016 DCL? First, every school district should have a policy on transgender students. If you do not currently have a policy in place, you should adopt one immediately. In that regard, we believe Missouri Consultants for Education (“MCE”) Policy 2115 correctly interprets and applies Title IX’s antidiscrimination requirements as they relate to transgender students. To be sure, Policy 2115 conflicts with the DCL, but remember the DCL is not law. A copy of MCE Policy 2115 is attached for your convenience. We anticipate making a very minor change to Policy 2115 similar to the locker room provision that would allow some interaction with parents about alternative restroom options.  However, in both cases the decision of the District will be made in the best interest of all students.  Second, if you are requested to permit access to restrooms, locker rooms and shower facilities by a transgender student, you should contact legal counsel immediately.  Finally, as outlined above, this is an evolving debate on Title IX’s application and coverage with several chapters yet to be written. As such, and because the DCL is not law, we believe any attempt by DOJ or DOE to withhold federal funding will fail. In turn, the agencies threat to do so is illusory and their likelihood of success is remote. Accordingly, immediate compliance with the DCL is premature and unnecessary.

If you have any questions concerning this issue, please feel free to contact Ernie Trakas or Tom Mickes.

Sincerely,
Ernie Trakas