United States: Trump Administration Rolls Back Transgender Student Protections

Last Updated: March 6 2017
Article by Lariza A. Hebert

Schools No Longer Face Federal Requirement To Permit Transgender Students To Access Restrooms Corresponding With Their Gender Identities

Late yesterday, the Trump administration revoked Obama-era federal guidelines that had instructed public schools to permit transgender students to use bathrooms that match their gender identity. This action comes less than two weeks after the Department of Justice withdrew its objection to a federal court injunction barring the implementation of that previous policy. Yesterday's Dear Colleague letter not only reverses course from the Obama administration's position, but establishes that transgender bathroom policies are determinations to be made by states and local school districts.

How Did We Get Here?

In May 2016, the Department of Education (DOE) and the Department of Justice (DOJ) jointly issued a Dear Colleague letter directing schools receiving federal education funding to allow transgender students to use bathrooms and changing facilities corresponding with their gender identity. The federal agencies concluded Title IX's sex discrimination ban included discrimination on the basis of gender identity, justifying the position.

However, before the 2016-2017 school year had begun for most students, a federal court in Texas blocked the Obama administration from enforcing its directive on a national basis, granting a preliminary injunction request brought by a number of states. After the injunction took effect, the Obama DOJ filed an appeal with the 5th Circuit Court of Appeals. It argued the injunction violated Title IX and requested the court limit the injunction to only apply to states that were parties to the suit.

But everything changed when President Trump took office in January. On February 10, a day after Jeff Sessions took office as Attorney General, the DOJ withdrew its appeal. This led many to believe that the Trump administration had no interest in defending or enforcing the 2016 Dear Colleague letter. That suspicion was confirmed yesterday with the issuance of the Trump administration's own letter. 

The Trump Administration's Dear Colleague Letter   

On the evening of February 22, the DOJ and DOE jointly released their own Dear Colleague letter expressly eliminating the federal requirement that transgender students have access to bathrooms and changing facilities that match their gender identities. Unlike Obama's guidance, the 2017 version lacks a new view or policy; instead, it focuses on revoking the May 2016 letter and establishing the position that the individual states and local school districts have the right to create their own policies.

The Letter begins by rescinding the Obama administration's 2016 Dear Colleague letter and the January 2015 letter to Emily Prince written by the DOE's former-Acting Deputy Assistant Secretary for Civil Rights. The 2017 letter indicates this reversal is necessary "in order to further and more completely consider the legal issues involved."  

The letter criticizes the Obama administration's now-revoked guidance documents by stating they failed to "contain extensive legal analysis or explain how the position is consistent with the express language of Title IX, nor did they undergo any formal process." It goes on to note that courts have disagreed when interpreting the guidance. 

Yesterday's letter indicates that the Trump administration will treat transgender bathroom policies as an issue for the individual states to decide, saying, "there must be due regard for the primary role of the states and local school districts in establishing educational policy." Notably, the letter specifically categorizes the transgender bathroom issue as purely an "educational" matter better left to local jurisdictions, rather than a civil rights matter to be handled by the federal government. Therefore, states and local school districts may adopt their own transgender bathroom policies.  

At the same time, the letter attempts to reassure those concerned about this issue by saying the withdrawal of the 2016 guidance documents has no effect on the right of all students to be protected from discrimination, bullying, and harassment. It stresses that all students must be able to learn and thrive in a safe environment. 

It concludes by explicitly stating it adds no requirements to existing, applicable law. Thus, the established federal law – in which Title IX sex discrimination does not include barring discrimination on the basis of gender identity – still stands.

Is This The Last Word In The Bathroom Battle?

Yesterday's policy switch has no immediate impact on public schools, as the federal court's injunction to Obama administration's policy is still in effect. However, because the bathroom battle has been such a hotly contested issue, this is unlikely the last we will hear from the administration on this matter. Moreover, the Supreme Court and individual states may, and most likely will, weigh in to further shape the issue.

The February 22 letter could, however, affect current litigation. On March 28, the U.S. Supreme Court is scheduled to hear oral arguments in a case involving a transgender student who was denied choice of bathroom in Virginia (G.G. v. Gloucester County School Board). Yesterday, the DOJ notified the Supreme Court of its withdrawal of the 2016 guidance documents and its subsequent change in policy. Now that the Obama administration's guidance has been reversed, and a new DOJ/DOE Dear Colleague letter in effect, the Supreme Court may decide to drop the case and direct the lower courts to sort out the issue.

As for whether Title IX sex discrimination includes discrimination on the basis of gender identity, that issue depends on how the courts, especially the Supreme Court, interpret the matter. The February 22 letter established the president's view that the matter is best left to state and local governments, but the courts may have the last word on that question.

While 13 states provide protection to transgender students who wish to use the bathroom and changing rooms of the gender with which they identify, 12 other states are currently considering legislation that would restrict access to bathrooms and changing facilities to sex assigned at the student's birth (Alabama, Illinois, Kansas, Kentucky, Minnesota, Missouri, New York, South Carolina, Tennessee, Texas, Washington and Wyoming). No doubt this is a fluid situation that will take several twists and turns in the not-too-distant future, requiring public school administrators to remain up-to-speed with the latest developments.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions