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.