The U.S. Department of Education (“Department”), through the Office for Civil Rights, enforces Title IX, which prohibits discrimination on the “basis of sex” in any educational program or activity receiving Federal financial assistance. However, Title IX expressly permits “separate toilet, locker room, and shower facilities on the basis of sex” (34 C.F.R. §106.33). Given such authority to sex-segregate under certain conditions, it is not surprising that school leaders have faced confusion, debate, complaints, and lawsuits over transgender students’ use of school restrooms.
On May 13, 2016, the Department, along with the U.S. Department of Justice, issued a joint Dear Colleague Letter providing guidance on the rights of transgender students by outlining key policy principles underlying the matter of transgender discrimination in schools. Gender identity is to be treated as “sex” for purposes of Title IX and schools are required to treat students consistent with their gender identity, not biological sex. This means that students may access the locker room, restroom, and with some conditions, single-sex sport, activities, or classes which comport with their gender identity. To read the Dear Colleague Letter, please click here. To read the press release issued by the Department of Justice regarding the joint guidance please click here.
The Dear Colleague Letter reinforces the confidentiality of information in school records, and reminds school personnel that only those with a legitimate educational interest have a need to know a student’s birth name or sex assigned at birth. Disclosure of such information, including directory information, could be considered an invasion of privacy. Requests for amending a transgender student’s educational records must be considered; refusal to do so under FERPA is subject to appeal and hearing rights. Changing a student’s name and gender identity will provide privacy protections and aid in staff’s use of proper pronouns and preferred names.
The Dear Colleague Letter highlights that no medical diagnosis or treatment documentation may be required of transgender students. Even in the face of community “objections or concerns,” schools must ensure that transgender students are not to be treated differently from the way other students with the same gender identity are treated. Public outcry is not an excuse for discrimination: “The desire to accommodate others’ discomfort cannot justify a policy that singles out and disadvantages a particular class of students” (Dear Colleague Letter, 2016, p. 2).
Although the Dear Colleague Letter does not have the force of law, it outlines how the Department interprets Title IX and its regulations as applied to transgender students. Should the Department find a transgender student experienced discrimination, the consequences for such a violation could result in the loss of all the school district’s federal funding or even a federal lawsuit. To read the Examples of Policies and Emerging Practices for Supporting Transgender Students, please click here.
The Fourth Circuit Court of Appeals recently made clear that the Department’s interpretations are controlling within that circuit. Until a decision is issued within the Sixth Circuit, where Ohio is located, Ohio schools may be best served to adhere to the Department’s interpretation. To read our summary of the court’s opinion in G.G. v. Gloucester County School Board on our blog, please click here.
Authors: Matthew John Markling and Patrick Vrobel
Note: This blog entry does not constitute – nor does it contain – legal advice. Legal jurisprudence is like the always changing Midwestern weather. As a result, this single blog entry cannot substitute for consultation with a McGown & Markling attorney. If legal advice is needed with respect to a specific factual situation, please feel free to contact a McGown & Markling attorney.