US. Department of Justice Of?ce of the Solicitor General Washington, D. C. 20530 February 22, 2017 Honorable Scott S. Harris Clerk Supreme Court of the United States Washington, DC. 20543 Re: Gloucester Countv School Board v. G.G., No. 16-273 Dear Mr. Harris: This case, which is scheduled for argument on March 28, 2017, involves a question about the proper application to transgender students of the prohibition on sex discrimination under Title IX of the Education Amendments of 1972, 20 U.S.C. 1681 et seq, and its implementing regulations, see 34 CPR. 106.33, in the context of sex-segregated facilities such as bathrooms and locker rooms. In the decision below, the court of appeals deferred to the interpretation of Title IX and its implementing regulations re?ected in administrative guidance issued by the United States Department of Education. See Auer v. Robbins, 519 US. 452 (1997). This letter is to inform the Court that, on February 22, 2017, the Department of Education, in conjunction with the Department of Justice?s Of?ce for Civil Rights, announced their decision to withdraw that guidance and a subsequent joint guidance letter, not to rely on the views expressed in the guidance, and instead to consider further and more completely the legal issues involved. Enclosed is a copy of the document withdrawing the guidance. We would appreciate it if you would circulate copies of this letter and attachment to the Members of the Court. Sincerely, Fat-cg Mia?. Edwin S. Kneedleri? Deputy Solicitor General cc: See Attached Service List The Acting Solicitor General is recused from this case. SERVICE LIST: S. KYLE DUNCAN SCHAERR DUNCAN LLP 1717 STREET, NW SUITE 900 WASHINGTON, DC 20006 (202-714?9492 (202) 7871060 Kduncanffi} schaerr-duncan.com JOSHUA A. BLOCK ACLU 125 BROAD STREET FLOOR 18 NEW YORK, NY 10004 (212) 549-2593 blockffe?Eacluorg U.S. Department of Justice Department of Education Civil Rights Division . Office for Civil Rights Dear Colleague Letter Notice of Language Assistance If you have dif?culty understanding English, you may, free of charge, request langUage assistance- services for this Department information by calling (1-800?872?5327) (TTY: 1-800-877- 8339), or email us at: Ed.Language.Assistance@ed.gov. Aviso a personas con dominio limitado del idioma ingl?s: Si usted tiene alguna di?cultad en entender? el idioma ingl?s, puede, sin costo alguno, solicitar asistencia lingijistica con respecto a esta informaci?n llamando al 1-800-USA-LEARN (1?800-872?5327) (TTY: 1?800?877?8339), 0 envfe un mensaje de correo electr?nico a: Ed.Language.Assistance@ed.gov. te?mhemximmn: (1:800-872-5327) 1-300T Ed.LanguageAssistance@ed.gov? . . 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Department of Education Civil Rights Division Office for Civil Rights February 22, 2017 Dear Colleague: The purpose of this guidance is to inform you that the Department of Justice and the Department of Education are withdrawing the statements of policy and guidance re?ected in: I Letter to Emily Prince from James Ferg-Cadima, Acting Deputy Assistant Secretary for Policy, Of?ce for Civil Rights at the Department of Education dated January 7, 2015;. and a Dear Colleague Letter on Transgender Students jointly issued by the Civil Rights Division of the Department ofiustice and the Department of Education dated May 13, 2016. These guidance documents take the position that the prohibitions on discrimination ?on the basis of sex? in Title Ix of the Education Amendments of 1972 (?ne or), 20 use. ?1681 et seq., and its implementing regulations, see, 34 C.F.R. 106.33, require access to sex-segregated facilities based on gender identity. These guidance documents do not, however, contain extensive legal analysis or explain how the position is consistent with the express language Of Title ix, nor did they undergo any formal public process. This interpretation has given rise to signi?cant litigation regarding school restrooms and locker rooms. The US. Court of Appeals for the Fourth Circuit concluded that the term ?self in the regulations is ambiguous and deferred to what the. court characterized as the ?novel? interpretation advanced in the I guidance. By contrast, a federal district court in Texas held that the term ?sex? unambiguously refers to biological sex and that, in any event, the guidance was ?legislative and substantive? and thus formal rulemaking should have occurred prior to the adoption of any such policy. in August of 2016, the Texas court preliminarily enjoined enforcement of the interpretation, and that nationwide injunction has not been overturned. In addition, the Departments believe that, in this context, there must be doe regard for the primary role of the-States and local school districts in establishing educational policy. in these circumstances, the Department of Education and the Department of Justice have decided to withdraw and rescind the above-referenced guidance documents in order to further and more completely consider the legal issues involved. The Departments thus will not rely on theviews expressed within them. Dear Colleague Letter Page 2 of 2 Please note that this withdrawal of these guidancedocuments does not leave students without protections from discrimination, bullying, or harassment. Ail sChools must ensure that all students, including LGBT students, are able to learn and thrive in a safe environment. The Department of Education Of?ce for Civil Rights wiil continue its duty under law to hear all claims of discrimination and will explore every appropriate opportunity to protect ali students and to encourage civility in our . classrooms. The Department of Education and the Department of Justice are committed to the application of Title IX and other federal laws to ensure such protection. This guidance does not add requirements to applicabie law. if you have questions or are interested in commenting on this letter, please contact the Department of Ed ucation at ocr@ed.gov or 800?421?3481 (TDD: 800-877-8339); or the Department ofJustice at education@usdoj.gov or 877-292?3804 800- 514-0383). Sincerely, Sandra Battle I - .E. Wheeler, ll . Acting Assistant Secretary for Civil Rights Acting Assistant Attorney General for Civil Rights U.S..Department of Education US. Department of justice