Where Does The Feds’ Withdrawal of Transgender Guidance Leave School Districts?

Federal Enforcement Actions: The joint decision by the U.S. Departments of Justice and Education to withdraw and rescind past guidance on transgendered students means those departments will not be independently pursuing enforcement actions against schools and/or threatening the loss of federal funds based on a school district’s alleged failure to implement each and every aspect of the former guidelines.

As a practical matter, enforcement of the rescinded guidance has been on hold since last August when a federal district court in Texas issued a nationwide injunction blocking enforcement. (See previous post.) The Wisconsin Department of Justice was one of several state departments that joined a federal lawsuit challenging the guidance that resulted in the issuance of that injunction. (See previous post.) Given the latest action from the new Trump administration, that lawsuit is “essentially moot,” according to a state DOJ spokesman.

Local School District Policies: For the moment, at least, most school districts are in position very similar to the position they were in before the now-withdrawn guidance was originally issued.  That is, there is substantial uncertainty about the extent to which Title IX prohibits discrimination on the basis of gender identity.

In light of that uncertainty, districts generally retain discretion to implement policies, procedures, and practices that school leaders determine are consistent with local priorities and that attempt to reasonably interpret applicable law—including the possibility that the courts, irrespective of the Departments’ changing position, will interpret Title IX to prohibit certain discrimination on the basis of a student’s gender identity.

School districts, for example, can choose to adopt (or retain) and implement otherwise-lawful local policies that provide protections and rights on the basis of a student’s gender identity, or that permit or require certain individualized accommodations.  As this Wisconsin Public Radio report suggests, some districts that have adopted such policies apparently intended to keep them in place.

Significantly, the withdrawal of the prior federal guidance does not prevent students, parents, or their representatives from filing (or continuing to pursue) complaints or lawsuits that allege unlawful discrimination under Title IX or violations of privacy rights.  (The Kenosha Unified School District is involved in pending litigation (a private action not brought by a student and the student’s parents and not the DOJ or DOE) regarding bathroom access that could potentially set state-wide precedent by defining a school district’s obligation in this area.)

Potential Legislation:  It appears likely that at least some state legislators may attempt to pursue one or more different “bathroom bills” in the current legislative session. In media reports, state Rep. Jesse Kremer (R-Kewaskum) was quoted as saying that while he is pleased by the Trump Administration’s change in position, he still intends to re-introduce a bill to force public school students to use bathrooms and changing rooms that correspond with their birth gender. A similar bill introduced by Rep. Kremer last session did not advance out of the Assembly Education Committee. (See previous post.)

GOP Wisconsin Attorney General Brad Schimel recently said that policies regarding treatment of transgender students in schools should be set by local school boards.

Pending U.S. Supreme Court Case: The next major legal (court) development regarding the rights of transgender students is expected to occur later this year when the U.S. Supreme Court issues a decision in a Virginia case that raises the specific question of whether Title IX prohibits discrimination on the basis of gender identity. That case is scheduled for oral arguments in Washington on March 28.

Summary: In short, while school leaders await further clarification or a resolution of their legal obligations from the courts and, potentially, from Congress, the state legislature, and administrative agencies, they will continue to face policy challenges as they attempt to balance student rights and personal privacy, provide safe learning environments for all students, and ensure that no student is unnecessarily marginalized.

The WASB will be providing more information and guidance for school boards on this topic as developments warrant.  Please look for articles and other helpful information this blog (the LegUpdate Blog), in the weekly Legislative Update Newsletter, in the weekly eConnection and in the WASB Policy Perspectives.

News Coverage About the Impact of the Change: The Economist; Washington Post; National Public Radio; Fox News; EdWeek