MRR Article: The Department of Justice and Department of Education’s Joint “Dear Colleague Letter” on Transgender Students: New Guidance for Public Schools

By: Tia J. Combs, Esq.
Mazanec, Raskin & Ryder Co., LPA

On May 13, 2016, the United States Department of Justice, Civil Rights Division, and the United States Department of Education Office for Civil Rights issued a joint Dear Colleague Letter providing guidance to school districts concerning the accommodation of transgender students.  The crux of the Dear Colleague Letter is a declaration that transgender students are protected under Title IX of the Education Amendments of 1972 (“Title IX”) and its implementing regulations.    The Departments have indicated that districts that fail to follow the guidance offered in the Dear Colleague Letter will not continue to receive federal funding.

Under Title IX, public entities, such as public schools, agree that as a condition of receiving federal funds they will not exclude, separate, deny benefits to, or otherwise treat differently on the basis of sex, any person in educational programs or activities unless expressly authorized to do so under Title IX or its implementing regulations.  The Departments interpret Title IX as requiring schools to treat a student’s “gender identity” as the student’s “sex.” “Gender identity” is defined as “an individual’s internal sense of gender.” Specifically, the Dear Colleague Letter states when a student notifies the school he or she will assert a gender identity differing from the student’s previous representations, the school must begin treating the student consistently with the newly asserted gender identity.

In connection with the Dear Colleague letter, the Department of Education also released its Examples of Policies and Emerging Practices for Supporting Transgender Students.  This twenty-five page booklet gives examples of the policies and procedures used in districts across the country which the Department believes are supportive of transgender students.

The Fourth Circuit’s Decision in G.G. ex rel. Grimm v. Gloucester County School Board

The Dear Colleague Letter and Examples of Policies and Emerging Practices for Supporting Transgender Students comes on the heels of the Fourth Circuit’s decision in G.G. ex rel. Grimm v. Gloucester Cty. Sch. Bd., No. 15-2056, 2016 WL 1567467 (4th Cir. Apr. 19, 2016), which also defines the rights of transgender students under Title IX.

In G.G., a transgender male student was given permission by an administrator to use the boys’ restroom facilities at his Virginia high school.  However, soon after this authorization was given, the local board of education passed a policy mandating all students use the restroom consistent with their birth-sex or an individual facility.  G.G. alleged the board’s policy was in violation of Title IX and equal protection.  The district court held that 34 C.F.R §106.33, which allows schools to provide “separate toilet, locker room, and shower facilities on the basis of sex,” allowed the Gloucester County School Board to mandate use of bathrooms and locker rooms based on birth-sex.

The Fourth Circuit disagreed.  It found that the word “sex,” as used in 34 C.F.R §106.33, is ambiguous because it does not clearly distinguish how to categorize a transgender student into the regulation’s two delineated categories of male or female.  Since the Fourth Circuit found the regulation to be ambiguous, it also found that the US Department of Education guidance concerning the regulation should be used to interpret it.  Although the case was decided prior to the issuance of the recent Dear Colleague Letter, prior guidance from the Department also directed that transgender students be allowed access to restrooms congruent with their gender identity.  As such, the Fourth Circuit found the Gloucester County School Board’s policy in violation of Title IX and unenforceable.

The Gloucester County School Board has filed a petition for the case to be reheard by an en banc panel of the Fourth Circuit.

The Intersection between Law and Policy

The release of the decision in G.G. and the Dear Colleague Letter within a month of each other has left school districts throughout the country wondering where they should go from here.  Unfortunately the answer is still far from clear.

The Dear Colleague Letter is officially only significant guidance from the Department of Justice and the Department of Education and does not technically have the force of law.  However, it takes on new importance in light of the Fourth Circuit’s holding that 34 C.F.R §106.33 is ambiguous.  The Fourth Circuit’s decision lends new validity to the Departments’ interpretive guidance, including the Dear Colleague Letter.

In future cases like G.G., courts will have to decide if they believe, as the district court originally held in G.G., that 34 C.F.R §106.33 is not ambiguous, or if they will follow the Fourth Circuit’s lead and hold the regulation is ambiguous.  If the regulation is declared ambiguous, the Dear Colleague Letter will be used to resolve the uncertainties.

Should you have any questions about the application or implementation of the Dear Colleague Letter in your district, please do not hesitate to contact any of the school law attorneys at Mazanec, Raskin & Ryder.


James A. Climer – MRR Cleveland
T: 440.287.8290
F: 440.248.8861

Tia J. Combs – MRR Lexington
T: 859.899.8517
F: 859.899.8498

John D. Pinzone – MRR Cleveland
T: 440.287.8322
F: 440.248.8861

Stacy V. Pollock – MRR Columbus
T: 614.324.0163
F: 614.228.5934

Neil S. Sarkar – MRR Cleveland
T: 440.287.8292
F: 440.248.8861

Christina L. Vessels – MRR Lexington
T: 859.899.8515
F: 859.899.8498