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No More Protection for Transgendered Students?
By Andrew W. Li, Amy R. Guerin on February 23, 2017

With the recent announcement by the U.S. Department of Education and Department of Justice that those federal agencies are withdrawing the previous guidance as to transgendered students offered in the “Dear Colleague Letter” jointly issued in May 2016, school districts across New Jersey may be wondering what, if any obligations, do they have with respect to their transgendered students.

Contending that conflicting interpretation of the Title IX regulations “has given rise to significant litigation regarding school restrooms and locker rooms”, the Departments decided to “withdraw and rescind the above-referenced 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.”

Your district may be wondering: absent federal guidance – do transgendered students have any rights which the district must protect?

The short answer is--“Probably yes, at least in New Jersey.”

As the February 22, 2017 “Dear Colleague Letter” states, “the Departments believe that, in this context, there must be due regard for the primary role of the States and local school districts in establishing educational policy.”

In New Jersey, school regulations, at N.J.A.C. 6A:7-1.1, et seq., require that “all students, regardless of race, creed, color, national origin, ancestry, age, marital status, affectional or sexual orientation, gender, gender identity or expression, religion, disability, or socioeconomic status, are provided equal access to educational programs and services by district boards of education”.

In addition to the regulations, there are civil rights and anti-discrimination laws (including the New Jersey Law Against Discrimination) which still offer significant protection to transgendered students in New Jersey.

Furthermore, the U.S. Supreme Court is scheduled to hear oral argument on March 28, 2017 in a case where a Virginia school board has prevented a transgender teenager from using the high school boys’ bathroom.

School districts are therefore advised to contact their board attorneys to discuss this complex and multi-faceted issue, the legal parameters of which are still not fully defined and are evolving.

For more information contact Parker McCay's school law attorneys

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