supreme-court-545534The Supreme Court will not review the Fourth Circuit’s decision in Gloucester County School Board v. G.G. despite agreeing in October 2016 to do so. The Fourth Circuit’s decision in favor of G.G., a transgender Virginia high school student, had been stayed by the Supreme Court while it considered whether to grant the School Board’s petition for certiorari. The effect of that stay was that the Fourth Circuit’s invalidation of the School Board policy restricting bathroom and locker room access to students’ biological gender was put on hold until the Supreme Court heard the case. However, in a surprise move on March 6, 2017 the Supreme Court vacated the Fourth Circuit’s decision in favor of G.G., and remanded the case back to the Fourth Circuit for further consideration in light of the February 22, 2017 joint guidance from the Departments of Education and Justice.

The Departments’ February 22 joint guidance (“February 22 Dear Colleague Letter”) rescinded Obama era guidance that interpreted Title IX’s prohibition against sex discrimination to encompass discrimination based on gender identity and transgender status.  The nation’s highest court, through this decision to vacate and remand, has declined the opportunity to settle the question of whether federal Title IX protections against sex discrimination in education extend to gender identity and transgender status.

The Trump Administration’s February 22 Dear Colleague Letter giving states and local districts the responsibility of deciding policy as it relates to transgender students will create inconsistent conditions for transgender students across the country, and the Fourth Circuit’s decision on remand will likely add to the jurisdictional variations on this issue. The Supreme Court’s refusal to hear this case vitiates an opportunity to set a national standard for transgender students’ rights in education.

While the February 22 Dear Colleague Letter rescinded the previous administration’s transgender guidance in education, there is nothing in the February 22 Dear Colleague Letter that prohibits institutions of higher education from continuing to promulgate and enforce current transgender policies that are consistent with the previous administration’s guidance. However, the Fourth Circuit’s decision on remand, which will have the effect of law, not mere guidance, may affect the policies for those institutions within the Fourth Circuit’s jurisdiction, which includes Virginia, North Carolina, South Carolina, West Virginia, and Maryland. Institutions across the country should refer to their state and local discrimination laws and consult with counsel should they decide to make changes to policies affecting transgender students, employees, and visitors.