This blog post was authored by Kim A. Overdyck.
On May 13, 2016, the U.S. Department of Justice (DOJ) and Department of Education (DOE) issued a “Dear Colleague Letter” and accompanying Examples of Policies and Emerging Practices for Supporting Transgender Students in response to the high volume of questions received regarding civil rights protections for transgender students. The letter does not add any requirements to current law, but it provides significant guidance on these issues. The guidance is summarized below:
“Dear Colleague Letter”
Title IX of the Education Amendments of 1972 (Title IX), and its implementing regulations, prohibits sex discrimination in educational programs and activities operated by recipients of federal financial assistance. The letter summarizes a school’s Title IX obligations regarding transgender students and explains how the DOE and DOJ will evaluate a school’s compliance with these obligations. The term “school” refers to recipients of federal financial assistance at all educational levels, including school districts, colleges, and universities. It excludes those schools controlled by a religious organization, to the extent that compliance would not be consistent with the organization’s religious tenets.
The Title IX prohibition against sex discrimination includes discrimination based on a student’s gender identity, including transgender status. To clarify what gender identity and transgender status mean, the letter provided the following terminology:
- “Gender identity” refers to an individual’s internal sense of gender. A person’s gender identity may be different from or the same as the person’s sex assigned at birth;
- Sex assigned at birth refers to the sex designation recorded on an infant’s birth certificate should such a record be provided at birth;
- Transgender describes those individuals whose gender identity is different from the sex they were assigned at birth. A transgender male is someone who identifies as male but was assigned the sex of female at birth; a transgender female is someone who identifies as female but was assigned the sex of male at birth; and
- Gender transition refers to the process in which transgender individuals begin asserting the sex that corresponds to their gender identity instead of the sex they were assigned at birth. During gender transition, individuals begin to live and identify as the sex consistent with their gender identity and may dress differently, adopt a new name, and use pronouns consistent with their gender identity. Transgender individuals may undergo gender transition at any stage of their lives, and gender transition can happen swiftly or over a long duration of time.”
The DOE treats a student’s gender identity as the student’s sex for the purpose of Title IX. This means a school cannot treat a transgender student differently from other students of the same gender identity. According to the letter, this interpretation is consistent with courts’ and other agencies’ interpretation of federal laws prohibiting sex discrimination.
Title IX requires that when a student, or the student’s parent or guardian, notifies the school administration that the student is asserting a gender identity different from what is on the school records, the school will begin treating the student consistent with the student’s gender identity. Because transgender students are often unable to obtain identity documents reflecting their gender identity, requiring students to produce these documents, in order to treat them consistently with their gender identity, may violate Title IX when it has the effect of limiting or denying students equal access to educational programs or activities. The obligation to ensure nondiscrimination applies even in circumstances where other students, parents, or community members raise objections or concerns. The letter is clear that the desire to accommodate others’ discomfort does not justify a policy that singles out and disadvantages a particular class of students.
In discussing Title IX compliance, the letter focuses on four areas summarized below
1. Safe and Nondiscriminatory Environment
Schools have a responsibility to provide a safe and nondiscriminatory environment for all students, including transgender students. Harassment based on gender identity, transgender status, or gender transition is harassment based on sex. If this sex-based harassment creates a hostile environment, the school must take “prompt and effective steps to end the harassment, prevent its recurrence, and as appropriate, remedy its effects.”
2. Identification Documents, Names, and Pronouns
Title IX requires a school to treat students consistent with their gender identity, even if there is a discrepancy between their educational records and identity documents regarding their sex. School staff and contractors are to use pronouns and names consistent with a transgender student’s gender identity.
3. Sex-segregated Activities and Facilities
Restrooms and lockers; athletics; single-sex classes; single-sex schools; social fraternities and sororities; housing and overnight accommodations; and other sex-specific activities and rules are discussed. Under certain circumstances, Title IX’s implementing regulations allow schools to provide sex-segregated restrooms, locker rooms, shower facilities, housing, and athletic teams, as well as single-sex classrooms. However, the school must allow transgender students to participate in activities and have access to facilities consistent with the gender, with limited exceptions.
4. Privacy and Education Records
Nonconsensual disclosure of personally identifiable information, such as the student’s birth name or sex assigned at birth, may harm and invade the privacy of transgender students and violate the Family Educational Rights and Privacy Act (FERPA). However, the “legitimate educational interest” exception still applies. As far as directory information is concerned, a school may not designate a student’s sex, including transgender status, as directory information. Doing so could be harmful or an invasion of privacy. A school may receive a request to update a student’s education records to make them consistent with their gender identity. Under FERPA, a school must consider the request of an eligible student or parent to amend an education record that is inaccurate, misleading, or in violation of the student’s privacy rights. Under Title IX, a school must respond to a request to amend information relating to a student’s transgender status consistent with its general practices for amending other students’ records.
Examples of Policies and Emerging Practices for Supporting Transgender Students
The accompanying Examples of Policies and Emerging Practices for Supporting Transgender Students provides practical examples to meet Title IX requirements and includes policies and procedures schools across the country are implementing to support transgender students. The common questions addressed in the document are student transitions; privacy, confidentiality and student records; activities and facilities; and terminology. California examples include Los Angeles Unified School District issuing policies on confirming a student’s gender identity and ensuring transgender students have an opportunity to participate in athletics consistent with their gender. Another is El Rancho Unified School District issuing policies that provide students with the right to openly discuss and express their gender identity and guidelines for addressing issues related to gender and gender-non-conforming students.
It is important to note that California has had similar protections for a number of years. The Education Code prohibits public schools in California from discriminating on the basis of specific characteristics, including gender, gender identity, and gender expression. A student can participate in sex-segregated school programs and activities, including athletic teams and competition, and use facilities consistent with their gender identity, irrespective of the gender listed on the educational records.
How we can help
If your educational institution needs assistance, please contact one of our five offices state-wide. We can:
- Provide training
- Create and update your policies and procedures
- Investigate Title IX violations
- Assist in responding to Title IX complaints
- Provide advice and counsel on how to best ensure compliance.
If you have questions about this issue, please contact our Los Angeles, San Francisco, Fresno, San Diego, or Sacramento office.
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This article was also published on the firm’s California Public Agency Labor and Employment Blog. To view other blog posts, please visit www.calpublicagencylaboremploymentblog.com.