Transgender Students in Pubic Schools
by Jim Hopkins, school board member
On May 13, 2016 the US Department of Justice and the US Department of Education published a
joint letter for public schools entitled "Dear Colleague Letter on Transgender Students." The Department
of Education issues a dozen or so Dear Colleague Letters per year to state and local school boards on various
subjects. Most of them are not covered by the press but this one was released with a big media splash.
Coverage of the letter by the news media was disappointing because the media implied the letter was a
mandate from the federal government, which it is not. The federal government defines Dear Colleague Letters
as "guidance documents" and by law, they cannot impose any binding requirements. This fact is clearly
documented in the letter's second footnote: Final Bulletin for Agency Good Guidance Practices, 72
Fed. Reg.3432, 3434 (Jan. 25, 2007). This bulletin says in part: "Nothing
in this bulletin is intended to indicate that a guidance document can
impose a legally binding requirement."
Most Dear Colleague Letters end with a threat to withhold federal funds. But attorneys that handle
these issues have told me that the federal government has never withheld funds from any Virginia
School Board, based on a Dear Colleague Letter. At the present time these agencies lack the authority
to mandate the guidance, so they attempt to bully states and local school boards into voluntarily
implementing their guidance.
Orange County schools often have students that request special arrangements in using bathroom
facilities. These are dealt with on a one-on-one basis because the reasons can very. All of our
schools have private bathroom facilities in the heath room and in the main office, which if the need
arises, can be made available to a particular student. Students are required to request an
accommodation (as noted in the Dear Colleague Letter) and a workable solution can be achieved.
As a follow-up to this article: In August 2016, a federal district
court in Texas issued a national wide injunction barring the enforcement
of the above referenced guidance document.
On February 22, 2017 the US Department of Education and the US Department of
Justice issued a joint Dear Colleague Letter withdrawing and rescinding the "Dear Colleague Letter on Transgender Students."