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In a "Dear Colleague Letter" issued on February 22, the Departments of Justice and Education civil rights divisions withdrew guidance issued by the Obama administration on non-discrimination—particularly for transgender students—under Title IX.

The new letter, however, states, "Please note that this withdrawal of these guidance documents does not leave students without protections from discrimination, bullying, or harassment.All schools must ensure that all students, including LGBT students, are able to learn and thrive in a safe environment."

The Obama policy required institutions to treat students consistent with their gender identity; failing to do so may have created or contributed to a hostile environment in violation of Title IX. The rules were never officially implemented because a federal judge blocked their implementation after a legal challenge from several states.

Trump officials at the Departments of Justice and Education argued that the Obama policies did not "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." The new guidance also stresses "due regard for the primary role of the States and local school districts in establishing educational policy."

In light of the policy change, in a separate statement, Secretary of Education Betsy DeVos wrote, "At my direction, the Department’s Office for Civil Rights remains committed to investigating all claims of discrimination, bullying and harassment against those who are most vulnerable in our schools."  She too reiterated the role of state and local communities in finding solutions.

The letter could impact the course of a Supreme Court case scheduled for March. The justices will question whether prohibiting a transgender student from using bathrooms that correspond with his gender identity is discriminatory and violates his civil rights. An appeals court ruling in favor of the student cited the now-reversed Obama administration interpretation of Title IX policy. It is unclear if Supreme Court nominee Judge Neil Gorsuch will be confirmed and on the bench before this case is brought before the Supreme Court.


Liz Clark

Vice President, Policy and Research


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