Decorative Scales of Justice in the CourtroomOver the past year, the U.S. Department of Education’s directives concerning the rights of transgender students under Title IX have changed course, muddying the collective understanding of how federal agencies interpret Title IX with regard to transgender students’ access to sex-segregated settings.  Clarification is not likely to be immediately forthcoming, as the Supreme Court yesterday remanded the high profile transgender student rights case Gloucester County School Board  v. G. G. ex rel. Grimm, no 16-273, to the Fourth Circuit Court of Appeals in light of the Dear Colleague Letter (“DCL”) issued February 22, 2017.  In a brief order, the Supreme Court vacated the lower court’s judgment and instructed the Fourth Circuit to give the matter further consideration in light of the February 22nd DCL, which withdrew two pieces of federal guidance.  In effect, yesterday’s order vacates the Fourth Circuit’s decision in favor of the student, Gavin Grimm, which allowed him to access male restrooms and locker rooms in accordance with his gender identity in contravention of a board policy allowing access based only on a student’s biological sex.

The February 22nd DCL made mention of the significant litigation that arose in the lower courts in connection with the now-withdrawn guidance, and referenced the importance of state and local involvement, but it did not offer conclusive guidance on how the Departments of Education and Justice would interpret the relevant provisions of Title IX and its implementing regulations.  The now withdrawn guidance included a letter from a Department of Education official James A. Ferg-Cadima, dated January 7, 2015, and the joint Departments of Education and Justice DCL of May 13, 2016, both of which concluded that Title IX and its regulations require that access to sex-segregated facilities be granted based on a student’s gender identity.   Notably, the February 22nd DCL did not withdraw all guidance concerning transgender students.  Additional guidance, including the Office for Civil Rights’ Questions & Answers on Title IX and Sexual Violence (Apr. 29, 2014) and its Questions and Answers on Title IX and Single-Sex Elementary and Secondary Classes and Extracurricular Activities (Dec. 1, 2014), is still valid.  These documents predate the withdrawn guidance and extend certain protections to transgender students under Title IX.

By remanding the matter to the Fourth Circuit Court of Appeals, the Supreme Court has, for now, extricated itself from resolving the issue despite both parties having urged the Supreme Court to proceed and resolve the questions as presented.  Many states, including Connecticut, have extended protection to transgender students under state anti-discrimination law.  For the time being, boards of education should consult state law on this issue.  As detailed in our post of February 24, 2017, Governor Dannel Malloy has instructed Connecticut school districts to continue following the withdrawn federal guidance until the Connecticut State Department of Education releases guidance on the rights of transgender individuals in Connecticut schools.  Additionally, school districts may refer to the Connecticut Safe School Coalition’s FAQ document setting forth guidelines for schools regarding compliance with Connecticut’s gender identity and expression non-discrimination laws for additional guidance.