Friday, February 24, 2017

Trump Administration Pulls Guidance on Transgender Students’ Bathroom Use

It should come as little surprise that President Trump withdrew the “dear colleague” letter issued by former President Obama which advanced the position of both the Departments of Justice and Education that Title IX protections extended to student gender identity issues and sparked the discussion of whether schools must allow students to use the bathroom that aligned with the gender identity and not their assigned gender. The question is whether Trump’s action serves as a bellwether to a shift in transgender rights issues in the nation.

Last year saw record breaking advancement of transgender rights across the U.S., with some states becoming deeply divided on the issue. The key components of support for protection of transgender rights in the law centered on, among other actions, the EEOC’s position that transgender rights are included in the prohibition against gender discrimination. The Obama administration also actively advanced transgender rights by issuing a series of executive orders, directives and guidances which all recognized rights of transgender individuals to be treated under the law according to their gender identity. One of the more controversial guidances from Obama was the “dear colleague” letter that issued taking the position that Title IX, which prohibits discrimination in school services or activities based on gender, required access to school programs and facilities based on the student’s gender identity and not the student’s gender assigned at birth. It lent an enormous amount of fuel to the bathroom law debate, which includes laws in several states that require use of bathrooms based on assigned gender. Those laws in turn fueled economic boycotts from other states as well as private companies and organizations that took opposite positions on the issue.

So, where does the issue of transgender rights stand under the Trump administration and what is likely to happen with pending court cases on the issue? Well, we should probably expect a significant roll back of presidential and federal agency guidance on the issue. In withdrawing the “dear colleague” letter, the administration stated that the issue was one to be decided by states, not the federal government. With the withdrawal of that letter, the outcome may shift in the case of Gloucester County School District v. G.G., the high profile Virginia case where a school prohibited a transgender student from using the bathroom aligned with his gender identity. That case is now pending before the Supreme Court and the student’s case has until now relied heavily on Obama’s letter along with the EEOC’s position. With the withdrawal of the “dear colleague” letter, it leaves student GG to rely on the EEOC’s guidance, but the strength of agency guidances in forming law has also come under attack recently.

Although courts are not supposed to decide cases based on the temperature of the nation, it will be interesting to see how federal courts rule on whether transgender discrimination is prohibited under Title VII as a form of discrimination based on sexual orientation. Depending on how the 7th Circuit decides this issue, a split in the circuits may exist, which will likely then be decided by the Supreme Court. While some other states have adopted contrary legislation, Illinois remains decidedly in favor of protecting against discrimination based on transgender status.

Interesting times they are.