The wait for a final resolution of the legal issues surrounding transgender students will be extended as the result of a decision today by the United State Supreme Court in the landmark case, Gloucester County School Bd. v. G.G. Following the Trump administration’s recent rescission of previously issued Department of Education (DOE) guidance on transgender students’ rights, the Supreme Court vacated the prior judgment and remanded the case for further consideration by the U.S. Court of Appeals for the Fourth Circuit. This decision, coupled with the rescission of the Obama administration’s guidance, leaves little decisive federal guidance remaining for school districts addressing the issue now.
As we previously reported here, in Gloucester County, the Fourth Circuit had ruled that under Title IX, a transgender student could challenge a school board policy that limits bathroom and locker room access based on biological sex. In its ruling, the court deferred to the now withdrawn guidance from the DOE interpreting Title IX.
The Gloucester school district appealed to the Supreme Court, which agreed to hear the case and allowed the school to temporarily maintain its policy of sex-separate bathrooms while the case was under review. On February 22, 2017, the Trump Administration, via a Dear Colleague Letter, rescinded the DOE guidance upon which the Fourth Circuit based its earlier ruling. The Supreme Court sent the case back to the lower court “for further consideration in light of the guidance document” issued by the Trump Administration.
Considerable uncertainty remains regarding the rights of transgender students and the responsibilities of school districts in this realm. Federal trial courts continue to grapple with these issues with courts reaching conflicting conclusions. Despite this uncertainty, our experience is that school districts are navigating these issues successfully by working closely with transgender students and their families as well as the broader school community, and school districts should continue to do so, keeping this most recent development in mind.