Employment Law, Publications

U.S. Departments of Justice and Education Weigh in on Transgender Issues

May 19, 2016

This article is the latest in our continuing reporting on the transgender debate going on in our courts and legislatures. On Friday, May 13, 2016, the U.S. Departments of Justice and Education (DOJ/DOE) released joint guidance in an effort to help provide educators the information they need to ensure that all students, including transgender students, can attend school in an environment free from discrimination based on sex.  Under Title IX of the Education Amendments of 1972, schools that receive federal money may not discriminate based on a student’s sex.  The DOJ/DOE guidance makes clear that both federal agencies treat a student’s gender identity as the student’s “sex” for purposes of enforcing Title IX.  “There is no room in our schools for discrimination of any kind, including discrimination against transgender students on the basis of their sex,” said Attorney General Loretta E. Lynch.  “This guidance gives administrators, teachers and parents the tools they need to protect transgender students from peer harassment and to identify and address unjust school policies.  No student should ever have to go through the experience of feeling unwelcome at school or on a college campus,” said U.S. Secretary of Education John B. King Jr.  “This guidance further clarifies what we’ve said repeatedly – that gender identity is protected under Title IX”.

The guidance explains that when students or their parents, as appropriate, notify a school that a student is transgender, the school must treat the student consistent with the student’s gender identity.  A school may not require transgender students to have a medical diagnosis, undergo any medical treatment, or produce a birth certificate or other identification document before treating them consistent with their gender identity.

The guidance also explains schools’ obligations to:

  • Respond promptly and effectively to sex-based harassment of all students, including harassment based on a student’s actual or perceived gender identity, transgender status or gender transition;
  • Treat students consistent with their gender identity even if their school records or identification documents indicate a different sex;
  • Allow students to participate in sex-segregated activities and access sex-segregated facilities consistent with their gender identity; and
  • Protect students’ privacy related to their transgender status under Title IX and the Family Educational Rights and Privacy Act.

The guidance also allows schools to provide additional privacy options to any student for any reason.  The guidance does not require any student to use shared bathrooms or changing spaces, when, for example, there are other appropriate options available. Schools can also take steps to increase privacy within shared facilities.

Additionally, the Department of Education’s Office of Elementary and Secondary Education also released Examples of Policies and Emerging Practices for Supporting Transgender Students, a compilation of policies and practices that schools across the country are already using to support transgender students.  The document explains how some state and school district policies have addressed transgender issues. The Department of Education does not endorse any particular policy, but offers examples from actual policies to help educators develop policies and practices for their own schools.

Summary of Compliance with Title IX in light of the Guidance

Schools accepting federal funding agree not to exclude, separate, deny benefits to, or otherwise treat differently on the basis of “sex” any person in its educational programs or activities unless expressly authorized to do so under Title IX or its implementing regulations. The Departments treat a student’s gender identity as the student’s “sex” for purposes of Title IX and its implementing regulations. This means that a school must not treat a transgender student differently from the way it treats other students of the same gender identity.

The Departments interpret Title IX to require that when a student or the student’s parent or guardian, as appropriate, notifies the school administration that the student will assert a gender identity that differs from previous representations or records, the school will begin treating the student consistent with the student’s gender identity. Under Title IX, there is no medical diagnosis or treatment requirement that students must meet as a prerequisite to being treated consistent with their gender identity. Because transgender students often are unable to obtain identification documents that reflect their gender identity (e.g., due to restrictions imposed by state or local law in their place of birth or residence), requiring students to produce such identification documents in order to treat them consistent with their gender identity may violate Title IX when doing so has the practical effect of limiting or denying students equal access to an educational program or activity.

  1. Safe and Nondiscriminatory Environment: Schools have a responsibility to provide a safe and nondiscriminatory environment for all students, including transgender students. Harassment that targets a student based on gender identity, transgender status, or gender transition is harassment based on sex, and the Departments enforce Title IX accordingly. If 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. A school’s failure to treat students consistent with their gender identity may create or contribute to a hostile environment in violation of Title IX.
  2.  Identification Documents, Names, and Pronouns: Under Title IX, a school must treat students consistent with their gender identity even if their education records or identification documents indicate a different sex. The Departments have resolved Title IX investigations with agreements committing that school staff and contractors will use pronouns and names consistent with a transgender student’s gender identity.
  3. Facility Use: Title IX’s implementing regulations permit a school to provide sex segregated restrooms, locker rooms, shower facilities, housing, and athletic teams, as well as single sex classes under certain circumstances. When a school provides sex segregated activities (non athletic in nature) and facilities, transgender students must be allowed to participate in such activities and access such facilities consistent with their gender identity.
  4. Restrooms and Locker Rooms: A school may provide separate facilities on the basis of sex, but must allow transgender students’ access to such facilities consistent with their gender identity. A school may not require transgender students to use facilities inconsistent with their gender identity or to use individual, user facilities, when other students are not required to do so. A school may, however, make individual user options available to all students who voluntarily seek additional privacy.
  5. Athletics: Title IX regulations permit a school to operate or sponsor sex segregated athletic teams when selection for such teams is based upon competitive skill or when the activity involved is a contact sport. A school may not 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 (i.e., the same gender identity) or others’ discomfort with transgender students. Title IX does not prohibit age appropriate, tailored requirements 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.
  6. Single-Sex Classes: Although separating students by sex in classes and activities is generally prohibited, nonvocational elementary and secondary schools may offer nonvocational single-sex classes and extracurricular activities under certain circumstances. When offering such classes and activities, a school must allow transgender students to participate consistent with their gender identity.
  7. Single-Sex Schools: Title IX does not apply to the admissions policies of certain educational institutions, including nonvocational elementary and secondary schools, and private undergraduate colleges. Those schools are therefore permitted under Title IX to set their own sex based admissions policies. Nothing in Title IX prohibits a private undergraduate women’s college from admitting transgender women if it so chooses.
  8. Private Clubs: Title IX does not apply to private clubs.
  9. Housing and Overnight Accommodations: Title IX allows a school to provide separate housing on the basis of sex. However, a school must allow transgender students to access housing consistent with their gender identity and may not require transgender students to stay in single occupancy accommodations or to disclose personal information when not required of other students. Nothing in Title IX prohibits a school from honoring a student’s voluntary request for single occupancy accommodations if it so chooses.
  10. Record Keeping: As noted above, there are specific rules established for the keeping of records related to transgender students. This article does not discuss those requirements other than generally referring to them.

The political and legal battle over the treatment of transgender students continues in court rooms, board rooms, and legislatures throughout the country.  Ultimately, the U.S. Supreme Court and/or Congress will have to resolve this issue – either nationally or only at the federal level – leaving the states to fend for themselves.  In the interim, it is imperative that school districts receiving federal funding review the DOJ/DOE guidance and make their own decisions on whether to comply or fight the guidance.

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