by Meganne Trela (Spring 2016)

In its May 13, 2016, Dear Colleague Letter: Transgender Students the Department of Education, Office for Civil Rights (“DOE”) jointly with the Department of Justice (“DOJ”) clarified that a student’s gender identity constitutes the student’s sex for the purposes of enforcing Title IX and its implementing regulations. Gender identity is defined as “an individual’s internal sense of gender” and may differ from — or be the same as — the person’s sex assigned at birth. Schools are required to comply with Title IX and its implementing regulations as a condition of receiving federal funds. Under the new guidance, the DOE considers schools that treat transgender students differently from other students in violation of Title IX and federal laws prohibiting sex discrimination.

According to the DOE, a school must treat students consistent with their asserted gender identity as soon as it receives notification from the student, or a parent or guardian (when appropriate), that the student will assert a gender identity that differs from prior representations or records. Schools cannot require evidence of a medical diagnosis or treatment as a prerequisite to a student being treated in accordance with their gender identity. Requiring such prerequisites may violate Title IX if the effect of such requirement denies or limits students equal access to educational programs or activities. Furthermore, objections from other students, parents, or community members cannot serve as the basis for denying a transgender student equal access to educational programs and activities. The DOE specifically states that “the desire to accommodate others’ discomfort cannot justify a policy that singles out and disadvantages a particular class of students.” The guidance specifically delineates the rights for transgender students in several specific situations:

Safe and Nondiscriminatory Environment

Harassment targeting a student based on gender identity is sex-based harassment, and the DOE and DOJ will enforce Title IX accordingly. In situations where sex-based harassment creates a hostile environment, a school is required to take the measures necessary to promptly end the harassment, remedy the effect of the harassment, and prevent reoccurrence. This position is consistent with the DOE’s policy outlined in Questions and Answers on Title IX and Sexual Violence, issued on April 29, 2014.

Identification Documents, Names, Pronouns

Schools must treat students consistent with their gender identity even if the student’s education records and identification documents indicate a different sex. This means school staff and others in contact with the student should use pronouns and names consistent with the student’s gender identity.

Sex-segregated Activities and Facilities

Under Title IX a transgender student must be allowed to participate in activities and access facilities consistent with their gender identity. A school cannot require transgender students to use a facility (such as a restroom or locker room) that is an individual-user facility or is inconsistent with the student’s gender identity when other students are not required to do so. A school may make individual-user options available for all students who seek additional privacy; however, specific students cannot be required to use such facilities based on their status as a transgender student.

Similarly, schools must allow transgender students access to housing or overnight accommodations consistent with their gender identity and cannot require transgender students to stay in single-occupancy accommodations. Schools can, however, honor a voluntary request for single-occupancy accommodations without violating Title IX. Additionally, when schools (in the appropriate circumstances) separate students into single-sex classes, the school must allow students to participate in those classes consistent with their gender identity.

With respect to athletics, schools may operate/sponsor sex-segregated athletic teams when the selection for those teams is based upon competitive skill or the activity is a contact sport. However, a school cannot “adopt or adhere to requirements that rely on overly broad generalizations or stereotypes about the differences between transgender students and other students of the same sex . . . or other’s discomfort with transgender students.” Schools may tailor age-appropriate requirements to specific sports based on “sound, current, and research-based medical knowledge about the impact of the students’ participation on the competitive fairness or physical safety of the sport.”

Furthermore, the joint guidance specifically points out that a school is prohibited from disciplining or excluding students from participating in activities based on the student’s appearance or behavior “that is consistent with their gender identity or that does not conform to the stereotypical notions of masculinity or femininity.” For example, the discipline or exclusion of a transgender student based on the student’s decision to appear at a school dance or in a yearbook photo in a manner that is consistent with their gender identity would be a violation of Title IX.

Privacy and Education Records

The DOE considers a student’s transgender status private information that should not be disclosed without consent in accordance with the provisions of the Federal Educational Rights and Privacy Act (“FERPA”). As a result, only school personnel who have been determined to have a legitimate educational interest in the student’s transgender status may obtain such information. This provision applies even if the student has disclosed his or her transgender status to some members of the school community. Furthermore, a student’s sex or transgender status is not considered “directory information” under FERPA because the disclosure of such information could be harmful or considered an invasion of privacy.

When schools receive requests to update a student’s education records to reflect the student’s gender identity, the DOE asserts that making the requested change will help protect the student’s privacy and ensure that school personnel use the appropriate name and pronoun. Schools are required to respond to a request to amend information related to a student’s transgender status in a manner that is consistent with its general practices for amending other students’ records. FERPA’s requirements for considering, amending, or denying an amendment to a student’s education records applies to all students, including transgender students.

Conclusion

School districts should review any and all policies that may be related to transgender students—including, but not limited to, policies regarding restroom or locker room use, harassment, and student records. Any policies which do not conform to the DOE’s most recent guidance should be updated appropriately. Additionally, school personnel should be made aware of any policy updates and reminded about best practices related to transgender students and issues.

If you have questions or would like assistance drafting policies and procedures regarding transgender students or Title IX requirements, please contact Laura Weizeorick or Maureen Lemon at (630) 682-0085.