This post has been updated on February 22nd to reflect new reporting that an official letter rescinding President Obama-era advice given to schools from the Department of Eduction (DOE) and the Department of Justice (DOJ).
Earlier, The DOJ––ran by newly appointed Attorney General Jeff Sessions––dropped an appeal in a court case that challenged President Obama’s DOJ and DOE’s Dear Colleague letter regarding accommodating transgender students. On February 22nd, the New York Times reported that a letter rescinding the advice may be forthcoming, and that a draft had been leaked.
The advice in the Dear Colleague letter was never legally binding or a rule change. It was a best practice document, and this filing does not change the fact that schools are obligated to accommodate transgender students under Title IX. However, there is concern that some schools may interpret rescinding the Dear Colleague advice as permission to discriminate against transgender students.
The message here is that this DOJ, in particular, does not see transgender equality as a priority as the previous administration had. Message received.
The Silver Lining
The EEOC, an independent federal agency, is proceeding with another case related to interpreting sex discrimination as inclusive of transgender people.
Neither the DOJ nor the DOE can wave a magic wand and ignore a pile of case law that demonstrates that sex discrimination includes transgender people, and that employers and schools must accommodate them fully. Five federal courts of appeal have already ruled that discriminating against transgender people falls under “sex” discrimination, according to Mara Keisling at the National Center for Transgender Equality (check out their statement about all this here).
The Path Forward
We will continue to push elected officials to represent the needs of everybody, including transgender people. Educational institutions should accommodate transgender students fully, like many Ohio schools and districts have already. The Supreme Court will hear G.G. v. Gloucester, which will hear arguments March 28th, 2017.
The Fight’s Not Over––Learn About Gavin Grimm and His Case at SCOTUS