U.S. Departments of Education and Justice Weigh In on the Legal Developments Regarding Transgender Students

On May 13, 2016, the United States Department of Education ("DOE") and the United States Department of Justice ("DOJ") issued guidance to educational institutions that receive federal financial assistance regarding the rights of transgender students under Title IX. This guidance comes on the heels of a decision by the Fourth Circuit Court of Appeals regarding this issue.

The joint Dear Colleague Letter and press release make clear that schools are required to treat students in a manner consistent with the student's "gender identity." Gender identity is defined in the Dear Colleague Letter as "an individual's internal sense of gender" and may differ from the person's sex assigned at birth. When a student, or parent, notify a school that a student is transgender, even without a medical diagnosis, treatment records, birth certificate, etc., the school is obligated to treat the student consistent with the student's gender identity. The Dear Colleague Letter makes clear that it is the position of the DOE and DOJ that gender identity is protected under Title IX of the Education Amendments of 1972. Essentially, the student's "gender identity" equates to the student's sex for Title IX purposes. Hence, according to the DOE and DOJ, discrimination on the basis of gender identity is prohibited by Title IX.

The Dear Colleague Letter indicates that treating a student in a manner consistent with his/her gender identity includes, but is not limited to, utilizing the name the student has selected that is consistent with his/her gender identity. For example, if a student's gender identity is female, and the student adopts a female name and asks to be addressed using the feminine pronoun, school officials must comply with the student's request. Failure to do so could constitute sex-based harassment that is actionable under Title IX. Any alleged harassment of a transgender student based on the student's gender identity must be handled under the district's Title IX harassment policy.

With respect to restrooms and locker rooms, the Dear Colleague Letter states that a transgender student must be permitted to use the restroom and/or locker room that corresponds with the student's gender identity. A school may not require a transgender student to utilize a restroom or locker room that is inconsistent with the student's gender identity. Further, while a school district can offer the use of a private restroom or locker room to all students, mandating that a transgender student utilize this option would constitute a violation of Title IX. The Dear Colleague Letter states "as is consistently recognized in civil rights cases, the desire to accommodate others' discomfort cannot justify a policy that singles out and disadvantages a particular class of students."

The Dear Colleague Letter also addresses housing and overnight accommodations. The guidance states that school districts must allow transgender students to access housing consistent with their gender identity and may not require transgender students to stay in single-occupancy accommodations. Further, school districts may not disclose personal information (e.g., the student's transgender status) when such disclosures are not required of other students. This guidance will impact school districts with respect to school-sponsored overnight trips.

The educational records of transgender students are also addressed by the Dear Colleague Letter. Although nothing in the Dear Colleague Letter mandates that school districts amend a student's educational records to reflect the student's gender identity, it does stress the importance of maintaining the confidentiality of these records in accordance with FERPA. Additionally, the Dear Colleague Letter clarifies that if an eligible transgender student or the student's parent request that the student's records be amended, the request must be handled in accordance with the school district's policy for amending or correcting educational records pursuant to FERPA. If an eligible student or parent complains about the school district's handling of a request to amend or correct educational records, the complaint must be handled under the district's Title IX grievance procedures.

The Dear Colleague Letter covers additional topics such as athletics, single-sex schools, single-sex classes and social fraternities/sororities. The guidance also references additional resources to give schools and parents the "tools they need to protect transgender students from peer harassment and to identify and address unjust school policies." Additionally, while the Dear Colleague Letter does not endorse any specific policy regarding transgender students, it references an extensive guidance document entitled Examples of Policies and Emerging Practices for Supporting Transgender Students. School districts are urged to review these policy options.

The Dear Colleague Letter indicates that it "does not add requirements to applicable law" but rather "provides information and examples to inform recipients about how the Departments evaluate whether covered entities are complying with their legal obligations." However, some are viewing this guidance as a significant departure from past interpretations of Title IX. Subject to any further revisions or outcomes of potential legal challenges, the guidance is the current position of the DOE and DOJ. Failure to comply with the guidance in the Dear Colleague Letter may result in the loss of federal financial funding.

The National School Boards Association has published a frequently asked questions guide for school districts which addresses a wide range of issues relating to transgender students which will be updated in light of the new guidance. School districts should continue to proceed carefully when addressing transgender issues and give substantial consideration to this new guidance given that the potential consequences can be extreme (e.g. potential loss of federal funding, etc.). Stay tuned as the legal developments in this area continue to evolve.