U. S. Department of Education Guidance on Transgender Students
The U.S. Department of Education and U.S. Department of Justice issued a joint Dear Colleague Letter ("DCL") on transgender students on May 13, 2016. The DCL is accompanied by a second document by the Department of Education entitled, Examples of Policies and Emerging Practices for Supporting Transgender Students. The DCL can be found here. The Examples of Policies and Emerging Practices for Supporting Transgender Students can be found here.
The DCL reaffirms the Department of Education's position that discrimination on the basis of sex includes gender identity. Therefore, a school may be liable for violating Title IX if they treat a transgender student differently than they treat other students. Per the DCL, schools are required to treat students in accordance with their gender identity. Schools are prohibited from requiring students to obtain documents or other medical proof showing their gender identity as a pre-condition.
Schools are also required to create a safe and nondiscriminatory environment for all students, including transgender students. Harassment that targets students based on their gender identity, transgender status, or gender transition may be found as harassment that creates a hostile environment which would need to be addressed promptly and effectively.
The DCL also provides guidance in the use of pronouns as it relates to transgender students and guidance on the treatment of transgender students in sex-segregated activities and facilities. Of particular importance is the use of restrooms and locker rooms. The DCL takes the position that transgender students should be allowed access to restrooms and locker rooms consistent with their gender identity. A school may not require a transgender student to use a separate locker or restroom when other students are not required to do so. A school may, however, make individual user options available to all students. Even if individual-user options are available for all students, the guidance does not state that transgender students may be required to use the individual-user facilities. The DCL's position on transgender restroom use is consistent with a recent case decided in the Federal Fourth Circuit Court of Appeals we reported on in April 2016 in which a court decided that students should be allowed to use restroom facilities consistent with their gender identity. The DCL lastly provides guidance on privacy and education records of transgender students.
This guidance comes at a time when transgender issues are at the forefront nationally, particularly considering the lawsuit ongoing between the U.S. Department of Justice and North Carolina's law mandating individuals to use the restroom consistent with their gender identified at birth, not their current gender. For more information on these documents and strategies to deal with transgender issues, please contact Mohammad J. Lakhani at 312.985.5511 | firstname.lastname@example.org or your Clark Hill education attorney.