Because the issue of transgender student rights is a hot topic, institutions should clarify to their staff and students … the continuing requirement to eliminate discrimination and comply with state and local law. In fact, students may still argue that denial of access based on biological gender is sex discrimination under Title 9.
By Stephen M. McLoughlin, Marilou F. Mirkovich and Eve P. Fichtner
The rights and protections of transgender students are established in both state and federal law. In California, state law requires school districts to permit pupils to participate in sex-segregated programs and activities based on their gender identity regardless of their biological gender.
In the federal realm, the Obama administration took several definitive steps to establish the rights of transgender students through Title 9 of the Education Amendments of 1972, which prohibits sex discrimination by any educational institution that receives federal funds. However, pending federal court cases and actions by the Trump administration have challenged the status of transgender rights in federal law.
While school districts and colleges in California must still comply with state law, understanding the status of federal law can help California educators develop policies and procedures to address the complex issues involving transgender students.
Starting in 2014, the Obama administration declared, through various guidance documents, that Title 9 protected transgender students against discrimination and required education institutions to grant access to facilities and programs based on a person’s gender identity regardless of biological gender. This guidance led to several lawsuits from states and individuals that remained pending when the Trump administration came into office.
On Feb. 22, 2017, the Trump administration changed the trajectory of Title 9 and transgender students by releasing a “Dear Colleague Letter” (the “Trump DCL”) reversing the Obama administration’s guidance with respect to transgender individuals. As soon as it was issued, the Trump DCL affected specific pending issues related to transgender student rights. Perhaps most importantly, the Supreme Court decided it would no longer hear the landmark transgender case initiated by student Gavin Grimm, challenging a school districts policy denying access to facilities based on gender identity.
While the Trump DCL represents a significant change in how the federal government will approach the rights of transgender students, it is important for all education institutions to understand the scope of the Trump administration’s actions and other factors that affect how transgender issues must be addressed. Specifically, these actions do not change state law, which in California still requires education institutions to permit students to participate in sex-segregated programs and use facilities consistent with their gender identity, irrespective of their biological gender.
Further, discrimination against transgender students still violates Title 9. To fully understand the effect of the Trump administration’s actions, and the possible future of transgender student rights, several other factors must be considered:
The Obama administration’s application of Title 9 to transgender students
In summary, the Obama administration established that Title 9 applied to discrimination against transgender students through two “waves” of guidance documents. First, the “Question and Answer” guidance documents discussing Title 9 in 2014 (collectively, the “Obama 2014 Guidance”). Although the Obama 2014 Guidance did not explicitly require education institutions to grant access to facility and programs based on gender identity, it did indicate that Title 9 protects transgender students from discrimination generally: “Title IX’s sex discrimination prohibition extends to claims of discrimination based on gender identity or failure to conform to stereotypical notions of masculinity or femininity and OCR (Office for Civil Rights) accepts such complaints for investigation.”
In 2016, the Obama administration released the “second wave” of transgender guidance, which explicitly stated that Title 9 required access to facilities and programs based on gender identity regardless of biological identity (the “Obama 2016 Guidance”) As succinctly summarized in the Obama 2016 Guidance: “When a school provides sex-segregated activities and facilities, transgender students must be allowed to participate in such activities and access such facilities consistent with their gender identity.”
The Obama administration’s interpretation of Title 9, with respect to transgender students, was met with legal challenges by states and individual school districts that argued Title 9 does not, and should not require institutions to open facilities and programs to students based on their gender identity. Both waves of Obama Guidance led to court action that may still effect how transgender students must be treated.
The Gavin Grimm Case
After the Obama 2014 Guidance, the rights of transgender students pursuant to Title 9 came before the federal courts. In G.G. v. Gloucester County School Board, or the “Gavin Grimm Case,” a school board adopted a policy requiring students to use facilities based on their biological gender; therefore, prohibiting transgender students from using the facilities of their gender identity. Thus, transgender student Gavin Grimm filed action in federal court, claiming the policy violated Title 9.
Specifically, Grimm focused on Obama 2014 Guidance to argue that denial of access to facilities based on gender identity violated Title 9. Grimm also claimed the board’s policy violated the Equal Protection Clause of the 14th Amendment to the United States Constitution by discriminating against transgender student based on their gender.
The District Court ruled in favor of the school district and dismissed Gavin Grimm’s claim. In regards to Title 9, the District Court found that the federal laws related to Title 9 allowed education institutions to limit bathroom access on the basis of sex. According to the District Court, any suggestion that Title 9 requires school districts to grant access to facilities based on gender identity improperly created a new law without following the procedure required to make new laws.
Gavin Grimm appealed the District Court’s decision to the U.S. Court of Appeals, which overturned the District Court’s decision. In summary, the Court of Appeals found that the Title 9 regulations were ambiguous as to what is meant by “sex discrimination” because sex could refer to biological gender or gender identity. Thus, the court found that the Obama administration had the right to interpret Title 9 to protect against gender identity discrimination and require education institutions to allow transgender students to use facilities of their choice.
Procedurally, the Court of Appeals returned the Grimm case to the District Court to decide the matter based on its findings. Upon receiving the case, the District Court entered a preliminary injunction ordering the school board to allow Gavin Grimm to use the boy’s bathroom, i.e. the bathroom of his gender identity until the case was decided.
The School Board then appealed the case to the Supreme Court. At first, the Supreme Court granted a stay allowing the board to follow its original policy of requiring bathroom use based on biological gender, to preserve the status quo until it decided whether to take the case. The Supreme Court then declared it would hear the Gavin Grimm Case.
However, after the Trump administration issued the Trump DCL, the Supreme Court decided it would not hear the Grimm case and instead sent the case back to the Court of Appeals to reconsider the case based on the Trump DCL.
While many were hoping the Supreme Court would hear the case and offer a definitive statement related to transgender protections under Title 9, its decision to send the Grimm case back to the Court of Appeals does not eliminate the case or its potential impact on transgender students and Title 9. The Court of Appeals will still consider the arguments, and the losing party will likely appeal the decision again to the Supreme Court. The courts will consider the Trump DCL but may also consider other arguments, such as the claim made by Gavin Grimm that denial of bathroom access constitutes a violation of the Equal Protection Clause of the 14th Amendment to the United States Constitution by discriminating against transgender student based on their gender.
Gavin Grimm will also likely argue that preventing transgender students from using facilities based on their gender identity constitutes sex discrimination that is prohibited by Title 9 even throughout the Obama Guidance, as confirmed in the Trump DCL. Thus, the Grimm case may still effect how Title 9 applies to transgender students.
The other Title 9 cases addressing transgender are no longer pending
In addition to the Grimm case, several states filed cases in federal court to challenge the interpretation of Title 9 in the Obama 2016 Guidance. First, a group of states, led by Texas (but not including California), filed an action in federal court arguing that the Obama administration’s application of Title 9 to transgender students was improper. Shortly after the Texas case was filed, another group of states, led by Nebraska (but again, not including California) filed another case in federal court making essentially the same arguments.
In summary, the states echoed the argument suggested by the District Court in the Grimm case, namely that requiring education institutions to allow facility access based on gender identity is a new law that must go through the legislative process and cannot be established through guidance issued by the president.
The Obama administration defended its interpretation in both the cases which were still pending when the Trump administration took over. In February of 2017, the Trump administration withdrew the federal government from both cases and, as a result, both cases are being dismissed by the federal courts.
These court actions, along with the Trump DCL, indicates that the federal government will no longer require education institutions to provide access to facilities and program based on gender identity. However, the Gavin Grimm Case may still effect how Title 9 applies to transgender students. In the meantime, education institutions should adopt their policies based on the scope of the Trump DCL and applicable state law.
The Trump DCL
The Trump DCL references the argument that the language of Title 9 does not explicitly mention transgender or gender identity, and therefore, the Obama 2016 Guidance improperly creates new law without going through the required lawmaking process.
The Trump DCL does not definitively establish the Trump administration’s position on transgender issues, but instead states its decision was made “in order to further and more completely consider the legal issues involved.” The Trump DCL also hints that the federal government will take the position that transgender rights should be handled locally by stating, “there must be due regard for the primary role of the states and local school districts in establishing educational policy.”
Finally, the Trump DCL ends by confirming that it does not eliminate the Title 9 protections from discrimination, bullying or harassment granted to all students, including lesbian, gay, bisexual and transgender (LGBT) students. Thus, the Trump DCL confirms that the Office for Civil Rights will continue to hear all claims of discrimination and protect all students through the application of Title 9. Gavin Grimm, and other students, may still argue that denial of access based on biological gender is sex discrimination under Title 9.
The effects of the DCL
The Trump DCL, which is relatively short at three pages, does not definitively resolve the question of transgender rights. While it does suggest the federal government will no longer require education institutions to grant access to facilities and programs based on gender identity, transgender students are still protected from discrimination based on their gender identity. Education institutions should consider the following issues when deciding how to address transgender issues.
First, education institutions are still required to follow state law with respect to transgender students. In California, Education Code section 221.5(f) requires school districts to permit pupils to participate in sex-segregated programs and activities, including athletic teams and competitions, and use facilities consistent with their gender identity, irrespective of the gender listed on the pupil’s records.
Secondly, as explicitly stated in the Trump DCL, Title 9’s protections against sex discrimination remain in place, specifically with respect to transgender students. The DCL is limited to withdrawing the Obama administration’s declaration that Title 9 requires institutions to allow access to sex-segregation facilities based on gender identity. Thus, education institutions must continue to take actions to eliminate and remedy discrimination against transgender students.
Specifically, institutions must still protect against bullying, abuse or harassment of transgender students or they could face action under Title 9. As part of this protection, all education institutions should make sure their communities understand transgender students are still protected from discrimination, and California law still requires access based on gender identity.
To comply with Title 9 with respect to transgender students, education institutions must first look to state law and comply with any requirements regarding facility use or program participation. In California, state law clearly requires school districts to allow transgender students to use facilities and participate in programs based on gender identity through Education Code section 221.5(f). Even in states where local law does not establish transgender rights, education institutions should develop, maintain and adjust processes to protect all students, including transgender students, from sex discrimination as required by Title 9, which includes bullying and harassment prevention.
Because the issue of transgender student rights is a hot topic, institutions should clarify to their staff and students the limited scope of the Trump DCL so all involved are aware of the continuing requirement to eliminate discrimination and comply with state and local law.
The authors are attorneys with Atkinson, Andelson, Loya, Ruud & Romo. Stephen McLoughlin represents California community college districts, universities and school districts in education-related matters, providing advice and counsel concerning compliance with Title 9. Marilou Mirkovich has represented employers in all aspects of labor relations and employment law, focusing on investigation in the areas of discrimination, harassment, whistleblower allegations, Title 9 sexual misconduct, public safety officer and firefighter misconduct. Eve Fichtner represents school districts, county offices of education, community colleges and private employers for personnel matters, student issues and all forms of discrimination and harassment claims.