There has been a significant change in the status of the pending transgender
case before the Supreme Court.
The Trump Administration Moved Away from Obama Administration
Positions, and the Supreme Court Took Notice. As we explained in our
last update, the Departments of Education and Justice have withdrawn the
“Dear Colleague Letter” which required schools to treat students consistent
with their gender identity. This change in position for the federal government
has now affected the G.G. v. Gloucester County case which was scheduled to
begin argument before the Supreme Court this month. We had hoped it
would provide clarity on this issue, but instead the questions presented will
be delayed even further.
The Court has “vacated” the decision of the Fourth Circuit and sent the case
back down to the lower courts for further deliberation after the federal
agencies withdrew the transgender guidance issued under the Obama
Administration. As you may recall, the Fourth Circuit’s position was that
courts should listed to the Obama Administration’s Department of Education
and Department of Justice when they interpreted Title IX regulations about
rights of transgender students. They had previously said schools should
defer to students’ gender identity. Because that guidance has changed, it
remains unclear how this case will resolve.
Transgender Issues Remain Unsettled. These events make one thing
obvious: the law in this area remains unsettled, and the federal
government’s position is in flux. Interestingly, both sides did tell the
Supreme Court that the questions at issue were still ripe for adjudication.
However, this decision signals that the Court likely believes the Trump
Administration should have the opportunity to participate at the lower court
level if it chooses to do so.
There are several other transgender cases pending at various levels of the
federal court system which could now come into play down the road. Some
of those cases have found for the student and others for the school. So, it is
possible one of those cases will work its way up to the Supreme Court, but
that likely will not be this year.
What are the next steps for Nebraska boards of education? As
frustrating as this is, we continue to believe that the best decision is to wait
for further developments in the law. We believe boards can continue
operating under their antidiscrimination policies as written, without
specifically including “gender identity.” Our best practical advice is for
boards to permit their administrators to work with families one-on- one with
accommodation requests. At its core, Title IX expects individualized
consideration of student needs, so avoiding the sweeping policy decisions
makes sense to us.
A Note on Public Statements. We anticipate that agencies like the ACLU
will continue to take the position that students are protected from
discrimination and should be accommodated on the basis of their gender
identity. As board members and administrators, you do have the right to
form your own personal opinions, and you have First Amendment rights to
free expression. However, as school attorneys we believe that our job in
defending your board’s decisions could be more difficult if administrators and
board members make sweeping public pronouncements about this issue.
We are encouraging board members and administrators keep their own
counsel and refrain from making statements about the issue of transgender
student rights in their official capacities, even as parents, patrons, and
others may have very strong viewpoints on either side of this issue. We
certainly believe personal convictions can and should drive policy in your
community; however, on this particular issue we believe your district will be
in the best position to defend its actions if the discussion of these issues is
focused on the legal questions. Because those remain so unclear, waiting
for additional clarification makes sense to us.
If you have questions or concerns about these or any related issues or are
interested in your board’s policy options, we recommend that you consult
with your school district’s attorney or call Karen, Steve, Bobby, or Tim, our
new attorney here at KSB.