These [Obama Administration] guidance documents take the position that the prohibitions on discrimination “on the basis of sex” in Title IX ... and its implementing regulations ... require access to sex-segregated facilities based on gender identity. These guidance documents do not, however, 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.
This interpretation has given rise to significant litigation regarding school restrooms and locker rooms....
In addition, the Departments believe that, in this context, there must be due regard for the primary role of the States and local school districts in establishing educational policy.
In these circumstances, the Department of Education and the Department of Justice have decided to withdraw and rescind the above-referenced guidance documents in order to further and more completely consider the legal issues involved. The Departments thus will not rely on the views expressed within them.The Solicitor General's Office also sent a letter (full text) to the Supreme Court notifying it of the Guidance withdrawal. Oral argument is scheduled March 28 in the Gloucester County School Board case involving the Obama Administration's interpretation of Title IX. The Supreme Court specifically granted certiorari on two issues (see prior posting), only one of which would appear to be mooted by yesterday's action. The two issues are:
... [S]hould deference extend to an unpublished agency letter that, among other things, does not carry the force of law and was adopted in the context of the very dispute in which deference is sought?
... With or without deference to the agency, should the Department’s specific interpretation of Title IX and 34 C.F.R. § 106.33 be given effect?The New York Times reports that Education Secretary Betsy DeVos had opposed withdrawal of the Guidance that protected transgender students, but that the President sided with Attorney General Sessions. The new Joint Letter does contain a paragraph expressing concern for student rights:
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 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 and to encourage civility in our classrooms. The Department of Education and the Department of Justice are committed to the application of Title IX and other federal laws to ensure such protection.Both Attorney General Sessions and Secretary DeVos issued separate statements as well. Sessions' statement (full text) reads in part:
The Department of Justice remains committed to the proper interpretation and enforcement of Title IX and to its protections for all students, including LGBTQ students, from discrimination, bullying, and harassment.DeVos' statement (full text) reads in part:
I have dedicated my career to advocating for and fighting on behalf of students, and as Secretary of Education, I consider protecting all students, including LGBTQ students, not only a key priority for the Department, but for every school in America.Today's Joint Letter only refers to the interpretation of Title IX. It is unclear how this will affect the similar interpretation of Title VII of the 1964 Civil Rights Act. The EEOC has interpreted the reference to sex discrimination in Title VII to protect transgender employees. Indeed, a December 15, 2014 Memorandum (full text) from Attorney General Holder to U.S. Attorneys takes the same position on Title VII.