DOJ and DOE Extend Broad Protections to Transgender Students

On May 13, 2016, the Department of Justice and the Department of Education issued a “Dear Colleague” letter extending broad protections to transgender students under Title IX of the Education Amendments Act of 1972 (“Title IX”). According to both agencies, Title IX’s prohibition against “sex discrimination” encompasses discrimination based on a student’s gender identity and transgender status.

The “Dear Colleague” letter provides a number of compliance guidelines to ensure equal treatment of transgender students. Among other things, the letter states that school districts must honor a student’s expressed gender identity when the student or his or her parent or guardian notifies the school district that the student will assert a gender identity that differs from previous representations or records. This means that staff must use pronouns and names consistent with a student’s expressed gender identity. According to the agencies, a school district’s failure to treat a student consistent with his or her expressed gender identity will constitute harassment or discrimination in violation of Title IX. Significantly, the agencies have expressed the view that school districts cannot request verification when a student expresses a gender identity that is different from prior representations or records if the verification request “has the practical effect of limiting or denying students equal access” to an educational program or activity.

The letter sets forth additional compliance guidelines, including:

• School districts must treat harassment based on gender identity, transgender status or gender transition the same as harassment based on other protected traits (e.g. race, disability), and must take steps to end the harassment, prevent its recurrence, and remedy its effects.

• With regard to sex-segregated facilities – such as restrooms or locker rooms – school districts cannot require transgender students to use facilities inconsistent with their expressed gender identity or status, nor can school districts require them to use single-user facilities where other students are not required to do so.

• When assigning students to sex-segregated athletic teams, school districts may rely on “sound, current and research-based medical knowledge” about the impact of students’ participation on the competitive fairness or physical safety of the sport. However, schools 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” or “other’s discomfort with transgender students.”

• School districts must treat a student’s birth name and sex assigned at birth as personally identifiable information that is protected from disclosure under the Family Educational Rights and Privacy Act (“FERPA”).

• Upon request, schools are encouraged to update a transgender student’s education records to make the records consistent with the student’s gender identity.

The “Dear Colleague” letter is consistent with a February 23, 2016 Memorandum issued by the Michigan Board of Education (“MDE Memo”), which likewise recommends broad protections to lesbian, gay, bisexual, transgender, and questioning students (“LGBTQ students”). Similar to the “Dear Colleague” letter, the MDE Memo recommends school districts adopt policies prohibiting discrimination and harassment of LGBTQ students, use the chosen name and pronouns corresponding to the student’s expressed gender identity, permit students to use restrooms and locker rooms that are consistent with their expressed gender identity, and allow students to participate in physical education classes, interscholastic sports, and other gender-based activities in accordance with their expressed gender identity.

Although neither the “Dear Colleague” letter nor the MDE Memo are law, it is important to remember that the DOE’s Office of Civil Rights is responsible for investigating complaints of Title IX violations, and enforcing compliance with the statute, which may include restricting or removing a school district’s access to federal funding. Given the DOJ and DOE’s stance that Title IX prohibits discrimination based on gender identity and transgender status, school districts must be mindful of the compliance guidelines set forth in the “Dear Colleague” letter or risk subjecting themselves to an OCR complaint. To find out more about how these guidelines may impact your obligations under Title IX and FERPA, contact a Keller Thoma attorney.