In May 2016, the Obama Administration’s U.S. Department of Justice’s Civil Rights Division and U.S. Department of Education’s Office for Civil Rights issued a Dear Colleague letter directing schools to recognize and treat their students consistent with their gender identities once they received notice of any change. While many publications have referred to the “strong guidance” as “the transgender bathroom mandate” this misnomer fails to capture its essence. Notably, the letter expressed the joint opinion of the Departments that gender identity discrimination was prohibited sex discrimination under Title IX. This determination enforced and echoed the Equal Employment Opportunity Commission (“EEOC”)’s position that gender identity discrimination was prohibited sex discrimination under Title VII. Likewise, several courts have already held that Title VII protects against gender identity discrimination, and, in some cases, sexual orientation discrimination. However, this may all be in the rearview mirror now.
On February 22, 2017, the Departments issued a new Dear Colleague letter at the direction of the Trump Administration. The letter, which Education Secretary Betsy DeVos allegedly contested, retracted the May 2016 letter. The February letter expressly “with[drew] the statements of policy and guidance”, citing States’ rights, differing opinions, and a lack of legal scholarship to support the Obama Administration’s interpretation of Title IX. The Departments wrote, “[t]here must be due regard for the primary role of the States and local school districts in establishing educational policy.” White House Press Secretary Sean Spicer hammered this point, saying, “the President has maintained for a long time that this is a states’ rights issue and not one for the federal government.”...
