Breaking: Transgender Update

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last update, the Departments of Education and Justice have withdrawn the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.