Federal Department of Justice and Department of Education Withdraw Policies and Guidance Protecting Transgender Students form Discrimination. However, California State Anti-Discrimination Protections for Transgender Students Remain in Place

colby-photo  Author: Colby Mills, Attorney at Law

Federal Policies and Guidance Regarding Anti-Discrimination Protections for Transgender Students Withdrawn by Department of Justice and Department of Education

On February 22, 2017, following the confirmation of Jeff Sessions and Betsy DeVos, the Department of Justice and Department of Education jointly issued a withdrawal of policy and guidance statements regarding protections from discrimination of Transgender Students issued under the Obama Administration.  The withdrawn statements are:

  1. Letter to Emily Prince from James A. Ferg-Cadima, Acting Deputy Assistant Secretary for Policy, Office for Civil Rights at the Department of Education dated January 7, 2015; and
  2. Dear Colleague Letter on Transgender Students jointly issued by the Civil Rights Division of the Department of Justice and the Department of Education dated May 13, 2016.

In general, the withdrawn statements interpreted Title IX requirements as requiring schools to treat transgender students in a manner consistent with their expressed gender identity.  However, under the new Administration, “the Department of Education and the Department of Justice have decided to withdraw and rescind the [now-withdrawn] guidance documents in order to further and more completely consider the legal issues involved . . . [and] thus will not rely on the views expressed within them.”

The February 22 withdrawal statement goes on to state that “this withdrawal … does not leave students without protections from discrimination, bullying, or harassment. All schools must ensure that all students, including LGBT students, are able to learn and thrive in a safe environment.”

Transgender Students Remain Protected Under California State Law

While the federal administration may be moving to roll back protections for transgender students, these federal changes do not alter protections under California law.  As such, transgender students retain all State protections against discrimination on the basis of gender identity afforded by California Education Code section 221.5.

Therefore, under California law:

  • Schools must afford students equal opportunity and access to the school’s facilities (including bathrooms), activities, and programs, in a manner that is consistent with each student’s gender identity, irrespective of whether the student’s gender identity matches the student’s assigned sex at birth.
  • Schools must provide all students with a safe, supportive and inclusive learning environment, free from discrimination, harassment, and bullying, including but not limited to:
    • being teased for failing to conform to sex stereotypes,
    • being deliberately referred to by the name and/or pronouns associated with the student’s assigned sex at birth,
    • being deliberately excluded from peer activities, and
    • having personal items stolen or damaged.
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