On Friday, February 10, 2017, the Trump Administration informed the Fifth Circuit that the United States will no longer challenge the injunction against enforcement of the joint Department of Justice and Department of Education guidance on the treatment of transgender students that was issued last year. We expect further developments in the coming weeks and months, but for now:

  • The government may not enforce the guidance — which generally would require institutions to treat of students according to their gender identity — while the injunction is in place.
  • Several states, such as Illinois, Colorado, and Massachusetts, and cities have passed or are considering passing laws addressing transgender issues, including bathroom usage.
  • Recent activity on transgender legal issues has heightened student, parent, community, and institutional awareness of transgender concerns.
  • The Supreme Court is still scheduled to address this issue later this term in Gloucester County School Board v. G.G., with oral arguments scheduled for March 28, 2017.

What this means to you

In an era of promised deregulation, decisions concerning transgender issues on campus may well be left in the hands of institutions. This will depend largely on whether the Supreme Court interprets the word “sex” in Title IX to include gender identity or resolves the pending case without addressing that issue. In the meantime, colleges and universities should continue to determine their own courses of action in light of their missions, values and any legal requirements that remain applicable. We will continue to monitor developments as they progress.