In February 2017, the U.S. Department of Education and the U.S. Department of Justice issued a joint Dear Colleague letter rescinding the Obama Administration's guidelines for the application of Title IX to transgender students. The Departments and their guidance documents instead "take the position that the prohibitions on discrimination 'on the basis of sex' in Title IX of the Education Amendments of 1972 (Title IX), 20 U.S.C. § 1681 et seq., and its implementing regulations, see, e.g. 34 C.F.R. § 106.33, require access to sex-segregated facilities based on gender identity." Citing a federal District Court in Texas, the Departments subscribe to the notion that "sex" unambiguously refers exclusively to biological sex. Essentially, the letter suggests that gender identity is not enough to allow students access to sex-segregated facilities, like bathrooms.
The internal memo provides members of the Office of Civil Rights guidance on when a suit originating under Title IX protections for transgender students may or may not be pursued. The memo lists when there is subject matter jurisdiction, including claims of sexual assault and harassment, sex stereotyping and gender-based discrimination in which "OCR should rely on Title IX and its implementing regulations, as interpreted in decisions of federal courts and OCR guidance documents that remain in effect, in evaluating complaints of sex discrimination against individuals whether or not the individual is transgender."
Attorney General Jeff Sessions, in a recent memorandum, has stated that Title VII, which prohibits workplace discrimination on the basis of gender does not extend to transgender people. Stating that "Title VII expressly prohibits discrimination 'because of. . . sex' and several other protected traits, but it does not refer to gender identity." Considering the similarities between the civil rights laws set place in Title VII and those in Title IX, the Sessions memo leaves the impression that the Department of Justice will likely take the position that Title IX protections do not apply to transgender students.
Despite the Trump Administration's "Dear Colleague Letter" rescinding the Obama Administration's guidance for schools when dealing with transgender students and the issues they face, the Department of Education website still states that "Title IX protects all students, including transgender and gender-nonconforming students, from sex discrimination. Title IX encompasses discrimination based on a student’s nonconformity with sex stereotypes and gender identity, including a student’s transgender status."