In May 2016, the Department of Education (DOE) and the Department of Justice (DOJ) (then under the Obama administration) issued a letter directing schools to allow transgender students to use the bathroom that aligned with their gender identity. Gender identity may be different than an individual’s gender at birth. Schools were advised that Title IX’s ban on sex discrimination included discrimination based on gender identity.
Cue to February 22 and a new presidential administration, the DOE and DOJ have released a new letter that has rescinded the rule set forth above. The federal government will not require individuals to have access to bathrooms and changing facilities that match their gender identity. This new letter does not provide a new policy. Rather, the letter shifts any decisions about transgender protections to individual states and local school districts as part of educational policy.
The February letter stated that the Obama administration’s documents failed to “contain extensive legal analysis or explain how the position is consistent with the express language of Title IX…” Transgender bathroom issues have been classified by the new administration as purely “educational,” as opposed to an issue of civil rights. Whether Title IX and Title VII bar discrimination against transgender individuals remains a question. The U.S. Supreme Court has yet to rule on this issue but is currently scheduled to hear a case regarding a transgender student’s denied choice of bathroom and will determine whether that denial violated Title IX.