As reported in a previous edition of School Board Notes, the U.S. Departments of Justice and Education jointly issued a  February 2017 “Dear Colleague” letter rescinding a May 2016 “Dear Colleague” letter. The earlier letter clarified personal and privacy accommodations, including restroom accommodations, that school districts should consider offering to transgender students.

While reaffirming that transgender students retain the civil guarantees that have traditionally been provided to all students under federal law, the new federal guidance indicates that the discretion to determine the accommodations that should be provided to transgender students lies with each individual state.

As this matter develops, it is worthwhile to note that in a decision emanating out of Virginia last summer, Gloucester County School Board v. G.G., the 4th Circuit Court of Appeals, relying on a January 2015 letter from the United States Department of Education, granted a transgender student’s requested restroom accommodation. The school district ultimately appealed to the United States Supreme Court, which initially placed the circuit court decision on hold. While the matter was pending before the Supreme Court, the February 2017 joint rescission was issued.

On March 6, the Supreme Court remanded the matter back to the 4th Circuit for further consideration in light of the joint rescission of the May 2016 “Dear Colleague” letter. In essence, the Supreme Court is asking the circuit court to determine whether that rescission has had an impact on its prior decision in favor of the student.

In New Jersey, gender identity is protected by the New Jersey Law Against Discrimination, and is also addressed by case law decisions. Neither the initial guidance, the 4th Circuit court’s  decision staying its implementation, nor the United States Supreme Court’s remand back to the 4th Circuit have had a significant impact on New Jersey’s schools because of New Jersey’s existing civil rights laws.

NJSBA developed a sample school board policy on Gender Identity and Expression prior to the issuance of the May 2016 federal guidance document. The NJSBA sample policy met the standards set out in the May 2016 document. It also reflects the current state of New Jersey law.