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U.S. DOE and DOJ Rescind Guidance Documents Regarding Transgender Students

By on March 15, 2017 in Students with 0 Comments

On February 22, 2017, the U.S. Departments of Education and Justice (“Departments”) released a Dear Colleague Letter, which rescinds the May 2016 federal guidance documents regarding the rights of transgender students. The May 2016 guidance documents offered clarification that Title IX of the Education Amendments of 1972 (“Title IX”) prohibits discrimination based on a student’s transgender status and/or gender identity. These previously issued guidance documents explained that school districts cannot require transgender students to use restrooms or locker rooms inconsistent with their gender identity or require them to use individual-user facilities when other students are not required to do so. The recent February 2017 Dear Colleague Letter states that such accommodations for transgender students is a matter of educational policy to be addressed by the states.

The Departments stated that the May 2016 guidance documents must be rescinded because they are not based on thorough legal analysis and did not follow any formal public rulemaking process. However, the February 2017 Dear Colleague Letter explains that the U.S. Department of Education Office for Civil Rights “will continue its duty under law to hear all claims of discrimination and will explore every appropriate opportunity to protect all students.”

The Departments’ interpretation of Title IX, an anti-discrimination statute, does not change New Jersey school districts’ obligations with respect to transgender students. Specifically, the New Jersey Law Against Discrimination (“NJLAD”) prohibits discrimination based on an individual’s gender identity or expression in places of public accommodation. Under the NJLAD, a student must be allowed to use the bathroom, locker, or other sex-segregated public facility consistent with their gender identity or expression.


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About the Author

About the Author:

Sanmathi (Sanu) Dev, Esq. concentrates her practice on the representation of boards of education and charter schools in all areas of school law including: labor and employment, special education, Section 504, student discipline, FERPA, Anti-Bullying Bill of Rights Act, student residency, civil rights, tenure, OPRA, and OPMA. In connection with these representations, she is experienced in handling matters before State and Federal courts, including the Office of Administrative Law. Ms. Dev is an experienced special education litigator and defends school districts in due process hearings from inception through trial. In addition, she has handled matters before governmental agencies, including the U.S. Office for Civil Rights and New Jersey Division on Civil Rights. Ms. Dev routinely conducts training and seminars, drafts policies and manuals, and provides strategic advice to school administrators regarding school law issues. Ms. Dev was recently recognized as one of South Jersey’s Awesome Attorneys as published by South Jersey Magazine. She is licensed to practice law in New Jersey, the District Court for the District of New Jersey and Pennsylvania.


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