On February 22, 2017, the U.S. Departments of Education and Justice (“Departments”) released a Dear Colleague Letter, which rescinds the May 2016 federal guidance documents regarding the rights of transgender students. The May 2016 guidance documents offered clarification that Title IX of the Education Amendments of 1972 (“Title IX”) prohibits discrimination based on a student’s transgender status and/or gender identity. These previously issued guidance documents explained that school districts cannot require transgender students to use restrooms or locker rooms inconsistent with their gender identity or require them to use individual-user facilities when other students are not required to do so. The recent February 2017 Dear Colleague Letter states that such accommodations for transgender students is a matter of educational policy to be addressed by the states.
The Departments stated that the May 2016 guidance documents must be rescinded because they are not based on thorough legal analysis and did not follow any formal public rulemaking process. However, the February 2017 Dear Colleague Letter explains that the U.S. Department of Education 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.”
The Departments’ interpretation of Title IX, an anti-discrimination statute, does not change New Jersey school districts’ obligations with respect to transgender students. Specifically, the New Jersey Law Against Discrimination (“NJLAD”) prohibits discrimination based on an individual’s gender identity or expression in places of public accommodation. Under the NJLAD, a student must be allowed to use the bathroom, locker, or other sex-segregated public facility consistent with their gender identity or expression.
