23 Feb 2017 in Case Notes, Commentary
The fate of the most controversial case the Supreme Court has agreed to decide this term is uncertain now that the Department of Education (DOE) has issued a “Dear Colleague” letter
withdrawing a previous letter requiring school districts to allow transgender students to use the bathroom consistent with their gender identity.
Title IX prohibits school districts that receive federal funds from discriminating “on the basis of sex.” A Title IX regulation states if school districts maintain separate bathrooms (locker rooms, showers, etc.) “on the basis of sex” they must provide comparable facilities for the other sex. In a 2015 letter,
DOE interpreted the Title IX regulation to mean that if schools provide for separate boys' and girls’ bathrooms, transgender students must be allowed to use the bathroom consistent with their gender identity. The new “Dear Colleague” letter takes no position on whether the term “sex” in Title IX includes gender identity.
G.G. is biologically female but identifies as a male. The Gloucester County School Board prevented him from using the boys' bathroom. He sued the district arguing that it discriminated against him in violation of Title IX.