Office of Civil Rights Releases “Dear Colleague” Letter on Transgender Students

June 3, 2016

By: Robert F. Manfredo

On May 13, 2016, the U.S. Department of Education’s Office of Civil Rights (OCR) released a Dear Colleague Letter (DCL) addressing a school’s Title IX obligations regarding transgender students, and explaining how the U.S. Department of Education (ED) and the U.S. Department of Justice (DOJ) will evaluate a school’s compliance with those obligations.  This DCL comes on the heels of a recent Fourth Circuit Court of Appeals decision discussing whether Title IX requires schools to allow transgender students to have access to restrooms consistent with their gender identities. Title IX of the Education Amendments of 1972 states, “no person shall on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.” In the DCL, the Departments make clear that they treat a student’s gender identity as the student’s sex for purposes of Title IX and its implementing regulations. Therefore, schools may not treat a transgender student differently from how they would treat other students of the same gender identity. The Departments state that when a student or the student’s parent or guardian (as applicable) notifies the school administration that the student will assert a gender identity that differs from previous representations or records, Title IX requires that “the school will begin treating the student consistent with the student’s gender identity.” The Departments note that Title IX does not impose any type of medical diagnosis or treatment requirement that students must meet as a prerequisite to being treated consistent with their gender identity. The DCL goes on to discuss several areas where schools must provide transgender students with equal access to education programs and activities – “even in circumstances in which other students, parents, and community members raise objections or concerns” – and describes the steps that schools must take to ensure equal access. Some of the highlights from the DCL include:
  • Safe and Nondiscriminatory Environment – “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.”
  • Identification Documents, Names, and Pronouns – “[A] school must treat students consistent with their gender identity even if their education records or identification documents indicate a different sex.” Accordingly, school staff and contractors must use pronouns and names consistent with a transgender student’s gender identity.
  • Sex-Segregated Activities and Facilities – “When a school provides sex-segregated activities and facilities, transgender students must be allowed to participate in such activities and access such facilities consistent with their gender identity.” The Departments do, however, appear to acknowledge that schools may continue to use students’ legal names on records where such use is legally required.
  • 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, however, make individual-user options available to all students who voluntarily seek additional privacy.”
  • Social Fraternities and Sororities – “Title IX does not apply to the membership practices of social fraternities and sororities.” “Those organizations, therefore, are permitted under Title IX to set their own policies regarding the sex, including gender identity, of their members.”
  • Housing and Overnight Accommodations – “[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.”
The DCL also addresses gender identity-related issues dealing with athletics, other sex-specific activities and rules, privacy and education records, disclosure of personally identifiable information from education records, disclosure of directory information, and amendment or correction of education records. Both the Education Department and Department of Justice consider the DCL to constitute “significant guidance” and – although it purportedly does not add requirements to existing law – provide information and examples to inform schools about how the Departments evaluate whether covered entities are complying with their legal obligations. Thus, schools must be sure to carefully review the DCL and familiarize themselves with these requirements in addressing issues related to transgender students.