KBS Reference Desk: Update on Transgender Directive

Q:      What ever happened about the federal mandate that came out in May requiring schools to allow transgender students to use the restroom of their choice? Do we have to comply with this directive now that the school year has begun?

A:      No. While the federal government did release communication last May calling for this type of accommodation by schools, a Texas federal judge has temporarily blocked enforcement of the law based on federal overreach. For now, schools do not have to allow transgender students to use the bathroom of their choosing.
In May 2016, the Department of Education Office for Civil Rights released a sweeping directive to schools stating that transgender students must be allowed to use the restroom of their choice. The directive, signed by both the Departments of Justice and Education, was issued in the form of a “Dear Colleague” letter which does not carry the force of law, but is instead intended as strong guidance to schools and other educational institutions that receive federal funding. Practically speaking, districts use these Dear Colleague letters to ascertain the Office for Civil Rights’ position on issues that may be made the subject of OCR complaints against a school. 

After the directive was released, 13 states (led by Texas) formed a coalition in opposition to the guidance. They filed suit on August 12, 2016, in the Northern District of Texas challenging the directive and requesting an injunction on its enforcement. The 13-state coalition claimed that the directive was an “illegal federal overreach” in an attempt to “rewrite the laws” while using the threat of loss of federal funding to coerce schools into compliance. The suit also claimed that the federal agencies creating the guidance did not follow the proper steps when promulgating the new rules. The coalition maintained that decisions regarding the education of transgender students were better left to the states, local school districts, educators and parents.

On Sunday, August 21, 2016, the U.S. District Judge overseeing the coalition’s suit issued a nationwide injunction halting enforcement of the federal directive. In support of its decision, the Court found that the directive was based on flawed legal analysis and that the federal agencies failed to follow the proper procedures for creating these administrative procedural rules (specifically failing to allow for notice and comment by the public). The injunction will remain in place until the lawsuit brought by the 13-state coalition is formally decided on the merits. While the suit is ongoing, however, the injunction allows schools to continue to make decisions about accommodations for transgender students at the local level, with input from the school, teachers, student and parents.

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