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February 23 2017

U.S. Department of Education Withdraws Enforcement Guidance on Access to Public School Restrooms By Transgender Students

By: Kurt M. Graham

The U.S. Department of Education has withdrawn enforcement guidance issued by its Office of Civil Rights (OCR) on January 7, 2015, stating that Title IX of the Education Amendments Act of 1972 (Title IX) requires access to sex-segregated facilities, such as restrooms, based on a student’s gender identity rather than biological sex.  Therefore, the OCR will no longer rely upon the views expressed in that guidance when evaluating whether a public school has violated Title IX. 

On September 14, 2016, the Michigan Department of Education (MDOE) approved voluntary guidelines for Michigan public schools which discuss various LGBTQ issues, including restroom usage by transgender students.  The MDOE guidelines (which were issued when the prior OCR Title IX enforcement position was not yet withdrawn) state:  “Students should be allowed to use the restroom in accordance with their gender identity.” 

Since the OCR has changed its enforcement position under Title IX and the MDOE guidelines are voluntary, a Michigan public school district has the choice of allowing, or not allowing its transgender students to use restrooms in accordance with their gender identity.    

The issue of restroom access for transgender public school students will be further addressed and clarified later this year by the U.S. Supreme Court.  The Supreme Court is scheduled to hear oral arguments in March in a case involving a Virginia high school student who identifies as male who is barred from using the boys’ bathroom.  The student alleges the School Board’s policy infringes on his civil rights. The 4th Circuit U.S. Court of Appeals ruled in the student’s favor, and the Supreme Court agreed to hear the case after an appeal from the School Board last October.   

The Supreme Court’s view of the case may differ since the OCR’s enforcement guidance interpreting Title IX was cited by the Court of Appeals in support of its decision.  The withdrawal of that guidance means the Supreme Court could consider the question of how to interpret that guidance moot.  The current balance of the Supreme Court presents another variable.  The Supreme Court stands at an even-numbered eight justices since the death of Justice Antonin Scalia last year. A 4-4 split would uphold the Court of Appeals’ ruling in the student’s favor, but Judge Neil Gorsuch, who President Trump nominated to replace him, is scheduled to have a confirmation hearing on March 20, days before the case will be heard. 

We will continue to keep you updated on any further developments for this issue.  If you have any questions, please contact Kurt Graham at (616) 632-8021 or