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Justice Department Informs Supreme Court of Change in Transgender Policy

By Mark Walsh — February 22, 2017 2 min read
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The Trump administration late Wednesday informed the U.S. Supreme Court of its withdrawal of guidance on transgender students in schools issued under President Barack Obama.

Education Week‘s Evie Blad reports here on the “Dear Colleague” letter issued by the Departments of Education and Justice—also on Feb. 22—that rescinds the broad May 13, 2016, transgender guidance issued by the Obama administration as well as an earlier, more informal interpretation letter that has been central to a court case scheduled for arguments next month in the Supreme Court.

In Gloucester County School Board v. G.G. (Case No. 16-273), the justices will weigh a ruling by the U.S. Court of Appeals for the 4th Circuit, in Richmond, Va., that deferred to the Education Department’s interpretation of its own regulation regarding Title IX of the Education Amendments of 1972. The Obama administration interpreted its Title IX regulation to require schools to allow transgender students to use restrooms and locker rooms corresponding to their gender identity instead of to their gender at birth.

The Gloucester County case involves a high school student, Gavin Grimm, who was born female but now identifies as male and has been denied by school board policy the use of boys’ restrooms. In ruling for Grimm last April, the 4th Circuit court gave deference to a letter outlining the Education Department’s views by James A. Ferg-Cadima, then an official in the department’s office for civil rights. (The Obama administration’s broader guidance document was issued after the 4th Circuit ruled.)

In its letter to the Supreme Court, the U.S. solicitor general’s office explains that the Education and Justice departments had decided to withdraw the Ferg-Cadima letter and the May 13 “Dear Colleague” letter on transgender students, and “not to rely on the views expressed in the guidance, and instead to consider further and more completely the legal issues involved.”

The letter is signed by Deputy Solicitor General Edwin S. Kneedler, a career Justice Department official, who states in a footnote that Acting Solicitor General Noel Francisco, a Trump appointee, “is recused from this case.” (No reason was disclosed.)

Kneedler merely asks the Supreme Court clerk’s office to distribute the letter and the document withdrawing the Obama administration guidance to the justices. It does not ask the Supreme Court to do anything regarding the Gloucester County case at this point, such as send it back to the 4th Circuit.

The letter is perhaps the only way for the new Trump administration to weigh in on the Gloucester County case before the scheduled arguments on March 28. The deadline for filing briefs on the side of the Gloucester County school board was in mid-January, when the Obama administration was still in office.

A version of this news article first appeared in The School Law Blog.