Client Alert: Guidance for Schools on the Rights of Transgender Students

On May 13, 2016, the Civil Rights Division of the Department of Justice (DOJ) and the Department of Education’s Office of Civil Rights (OCR) released a joint letter offering guidance for schools on the rights of transgender students. Although much of the media attention has focused on restrooms, the letter addresses several other important topics that are likely relevant to your school now or in the near future. 

The most important takeaway from the letter is that the DOJ and OCR believe that discrimination against a student on the basis of his or her gender identity is prohibited by Title IX. Going forward, both the DOJ and OCR will “treat a student’s gender identity as the student’s sex for purposes of Title IX and its implementing regulations.” Accordingly, the letter offers guidance on how schools should treat transgender students with respect to a number of issues in order to comply with Title IX.

• Timing. When a school is notified that a student’s gender identity differs or will begin to differ from his or her birth sex, the school should begin treating the student in a manner consistent with his or her gender identity. Schools may not require students to present evidence of medical diagnosis or treatment or require students to present identification documents consistent with their gender identity in order to be treated in a manner consistent with their gender identity.
• Name. Schools must use a student’s preferred name and preferred pronouns. When in doubt, schools should confirm this information with the student or parents, if appropriate.
• Bullying. Schools must appropriately respond to bullying and harassment that is based on a student’s gender identity. This type of bullying and harassment should be treated as discrimination on the basis of sex under your school’s Title IX procedures.
• Facilities and Access. Schools must allow transgender students to access single-sex facilities that align with their gender identity and must allow students to participate in single-sex activities consistent with their gender identity.
  • Schools cannot force a student to use a single-sex facility (including restrooms and locker rooms) that is inconsistent with his or her gender identity and cannot force a student to use an individual-user facility when other students are not required to do so. This means that students who identify as female should be permitted to use the women’s restroom and locker room and students who identify as male should be permitted to use the men’s restroom and locker room. Schools are permitted to make accommodations for any student who requests additional privacy without running afoul of Title IX.
  • Schools may not adopt policies for participation in their athletics programs that rely on “overly broad generalizations or stereotypes” about differences between transgender students and cisgender students of the same gender identity. Note – “cisgender” is a term for individuals whose gender identity matches their birth sex. 
  • Students must be provided with housing or overnight accommodations that are consistent with their gender identity. Schools may not require transgender students to stay in single-occupancy accommodations or to disclose any personal information not required of other students. Again, schools may properly accommodate a student’s voluntary request for single-occupancy accommodations.
  • Importantly, the letter notes that Title IX does not apply to the membership practices of social fraternities and sororities and that these organizations are free to set their own policies regarding the sex or gender identity of their members. Accordingly, schools should not attempt to use Title IX as a basis for forcing an organization to admit transgender members or for disciplining an organization that has elected not to allow transgender members.
• Discipline. The letter cautions schools against disciplining any student based on gender norms or stereotypes. This means a transgender student should not be disciplined for acting or appearing in manner consistent with his or her gender identity (i.e., a transgender girl should not be disciplined for wearing girl’s clothes) and also that no student should be disciplined for failing to conform to gender norms (i.e., a boy should not be disciplined for painting his nails; a girl should not be disciplined for wearing a tuxedo to a school dance). Schools should evaluate their policies to identify whether any are based on gender norms or gender stereotypes and should take steps to make such policies more neutral, if possible.
• Student Information. Schools must take reasonable steps to keep private a student’s transgender status, birth name, and birth sex. Nonconsensual disclosure of this information could be considered a violation of both FERPA and Title IX. Schools should not include a student’s birth sex or transgender status in a directory.
• Educational Records. Schools must respond to requests to amend a transgender student’s education records in a manner consistent with its general procedures for amending student records. Schools must comply with both FERPA and Title IX procedures upon receipt of such a request. 

The letter is only a summary of the DOJ and OCR’s interpretation of Title IX. However, some courts have already adopted similar interpretations. Although this letter represents a major policy shift and may seem overwhelming, it does not mean that your school must overhaul its policies and procedures overnight. It does mean that if your school wants to avoid OCR scrutiny or other legal action, it should begin to make appropriate efforts to treat transgender students in a manner consistent with their gender identity.

If you have questions about the DOJ/OCR letter, Osborn Maledon and its education law team is here to help.