In a new Dear Colleague letter dated February 22, 2017, the Departments of Justice and Education withdrew and rescinded two statements of policy and guidance involving transgender students. The two statements were based upon the prior administration's position that discrimination "on the basis of sex" under Title IX also required schools to allow access to single-sex facilities, including bathrooms and locker rooms, based on gender identity.
The guidance acknowledges that this interpretation "has given rise to significant litigation regarding school restrooms and locker rooms" and conflicting decisions by federal courts. The Departments also recognize that the withdrawn "guidance documents do not, however, contain extensive legal analysis or explain how the position is consistent with the express language of Title IX, nor did they undergo any formal public process." As a result, the Departments have decided to "more completely consider the legal issues involved."
The new guidance has no impact upon the responsibility of schools to protect students from discrimination, bullying, and harassment, reiterating "[a]ll schools must ensure that all students, including LGBT students, are able to learn and thrive in a safe environment." Additionally, the Department of Education's Office for Civil Rights will "continue its duty under law to hear all claims of discrimination and will explore every appropriate opportunity to protect all students and to encourage civility in our classrooms."
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