Lambda Legal filed a federal lawsuit Tuesday to compel the U.S. Departments of Education and Justice to release information about their decision to withdraw guidance detailing the protections transgender students have under Title IX of the Education Amendments of 1972, which bans discrimination in education on the basis of sex. After the U.S. Departments of Education and Justice rescinded the guidance in February, Lambda Legal filed Freedom of Information Act (FOIA) requests for documents and communications on the decision to withdraw the guidance. The U.S. Departments of Education and Justice have failed to comply with the FOIA requests and have not released a single document to Lambda Legal.
“The Departments of Education and Justice pulled the rug out from under transgender students, leaving them even more vulnerable to harassment and abuse. We need to know why,” said Susan Sommer, Associate Legal Director and Director of Constitutional Litigation at Lambda Legal. “Transparency and accountability are cornerstones of our country’s democracy, and the Freedom of Information Act is a vital part of citizens’ ability to understand how the government works and hold politicians accountable. The Departments of Education and Justice cannot be allowed to flout those ideals, to devise policies behind closed doors with terrible consequences for transgender schoolchildren nationwide.”
On February 22, 2017, the Departments of Education and Justice sent a “Dear Colleague” letter to public school districts withdrawing the guidance issued the previous year. Lambda Legal filed FOIA requests on March 13, 2017, for documents related to the decision, including correspondence with any groups outside the government, communications with the President’s staff, and instructions to staff about how to handle inquiries and complaints about discrimination, bullying and harassment based on gender identity or transgender status. Despite acknowledging receipt of the requests, the Departments of Education and Justice failed to turn over any of the documents requested by the April deadline or in response to Lambda Legal’s administrative appeals.
Issued in 2016 during President Obama’s Administration, the guidance reaffirmed that Title IX’s ban on sex discrimination includes discrimination on the basis of gender identity and clarified for schools and districts their responsibilities to protect transgender students under Title IX.
In addition to requiring schools to allow transgender students to use the restrooms and locker rooms that match their gender identity, the guidance provided clarification on name and pronoun use, privacy, dress codes and protection of students from bullying and harassment.
The lawsuit, filed in the U.S. District Court for the Southern District of New York, is Lambda Legal Defense and Education Fund, Inc. v. U.S. Department of Education and U.S. Department of Justice. Read a copy of the complaint here: https://www.lambdalegal.org/in-court/legal-docs/lambda_us_20170822_complaint
Lambda Legal Associate Legal Director and Director of Constitutional Litigation Susan Sommer is handling the case, joined by Avi Garbow, Joseph Vardner and Blair A. Silver of Gibson, Dunn & Crutcher LLP.