Should a transgender student be permitted to use a restroom or locker room consistent with his/her gender identity? Is a school district permitted to establish a policy that would require students to use restrooms/locker rooms consistent with only their birth gender?
Previously, the federal Office of Civil Rights and Department of Justice issued a document which advised public school districts on their opinion/interpretation of the law: public school districts are required to permit transgender students to use the restroom/locker room facilities consistent with their gender identities. (See Dear Colleague Letter on Transgender Students, 116 LRP 19809, 19 FAB 31 (OCR/DOJ 2016). A whole slew of litigation emerged across the country following the OCR/DOJ guidance letter.
However, this week, the Office of Civil Rights and Department of Justice have rescinded that guidance letter saying that they need time to “more completely consider the legal issues involved.” So right now, public school districts have no guidance from OCR/DOJ on how to handle the bathroom/locker room use of transgender students. Meanwhile, we will have to wait to hear from the Supreme Court when it rules on whether a Virginia district can lawfully enforce a policy that would keep a transgender student from using a restroom consistent with his gender identity (male), rather than his birth gender (female). The case is due to be argued on March 28th, 2017. (See G.G. v. Goucester County School Board, 116 LRP 15374, 822 F.3d 709 (4th Cir. 04/19/16), cert. granted 116 LRP 45595, 137 S. Ct. 369 (2016)(No. 16-273)).
Still, OCR/DOJ remain clear that all public schools have a duty to ensure that students, including transgender students, “are able to learn and thrive in a safe environment.”