Transgender Students and Title IX: What are School Districts Supposed to Do?

May 16, 2016

As you have undoubtedly heard by now, on Friday, May 13, 2016, the Civil Rights Division of the Department of Justice (“DOJ”) and the Office for Civil Rights of the Department of Education (“OCR”) issued joint guidance for schools regarding the treatment of transgender students in the educational environment. The “Dear Colleague” Letter, which is only eight pages long (with nineteen pages of examples from the Office of Safe and Healthy Students), clarifies and confirms the position that the Departments have taken on this issue in recent investigations of Title IX complaints in the K-12 school context. Specifically, the letter makes clear that “the Departments treat a student’s gender identity as the student’s sex for purposes of Title IX and its implementing regulations.” Therefore, under this interpretation, a school cannot treat a transgender student differently from the way it treats other students of the same gender identity.

The letter further addresses many of the questions that arise when accommodating transgender students, including use of names and pronouns, restroom and locker room usage, athletics, and privacy issues. The DOJ and OCR take the position that school staff should use the pronoun and name consistent with a transgender student’s gender identity, and that transgender students must be provided access to restrooms and locker rooms consistent with their gender identity. The letter does acknowledge that schools are permitted to maintain sex-segregated athletic teams in certain circumstances, but reminds schools to not rely on stereotypes. Finally, the letter reminds schools that information regarding a student’s transgender status is confidential and private ““ and subject to the protections afforded students under FERPA. Thus, schools are obligated to protect the confidentiality of a student’s transgender status in accordance with the requirements of FERPA.

The position taken by the DOJ and OCR in the “Dear Colleague” Letter will come as no surprise to those who followed the OCR’s investigation of a complaint involving the Township High School District 211 in Palatine, Illinois. On November 2, 2015, the OCR issued a letter of findings notifying the District that it was in violation of Title IX because it denied a transgender girl access to the girls”™ locker room, although the District did use the student’s preferred name and pronoun, allowed the student to participate in girls”™ athletics, and allowed the student access to the girls”™ restrooms. The District cited the privacy interests of the other students as the reason for denying the student access to the girls”™ locker room. Upon receipt of the letter of findings, the District had thirty days to reach a resolution with the OCR or be subject to a possible enforcement action by the OCR. On December 3, 2015, the District and the OCR reached a resolution agreement, which allowed the student access to the locker room, with the understanding that the student would use the recently installed “privacy curtains.” Thus, the “Dear Colleague” Letter more broadly sets forth the position that the OCR has taken in this and other investigations.

Notably, guidance from the OCR is simply that ““ guidance. “Dear Colleague” Letters are not regulations, and cannot be enforced as such. Of course, as a practical matter, guidance from the OCR carries great weight. A school is much more likely to be subject to an OCR complaint (which can be filed, investigated, and resolved at no cost to the complainant) than a federal lawsuit. And districts almost always agree to a resolution with the OCR, as most districts are not is a position to risk the loss of federal funding. Nevertheless, as the National School Boards Association noted in its statement following the release of the “Dear Colleague” Letter, this area of the law is still somewhat unsettled.

In March of 2015, a federal district court in Pennsylvania rejected a lawsuit by a transgender student seeking to use men’s facilities at the University of Pittsburgh, even though he was biologically a female. In Johnston v. University of Pittsburgh [1], the student appealed the ruling, and the University settled the case, changing its policy to allow transgender students to use facilities consistent with their gender identity. A recent opinion from the Fourth Circuit of the United States Court of Appeals, however, indicates that at least some courts will agree with the DOJ and OCR. Indeed, in G.G. v. Gloucester County School Board [2], the Fourth Circuit Court of Appeals noted that it must be “highly deferential” to the OCR’s interpretation of its own regulations, and reversed the district court’s dismissal of the student’s Title IX claim. Other lawsuits are pending, including the suits in North Carolina regarding the implementation of state legislation requiring individuals to use public restrooms consistent with their biological sex.

In light of these recent developments, schools must carefully consider how to accommodate any transgender students in their districts. As an initial matter, it is important to note that a school district is not required to adopt a specific policy regarding transgender students and their use of restrooms and facilities. When you take a step back and consider what is really at issue, it comes back to prohibited discrimination on the basis of sex (now possibly defined as including gender identity) under Title IX. Each District already has a policy that prohibits any discrimination or harassment on the basis of sex and other protected categories. It is clear that such policies will be interpreted to prohibit discrimination and harassment on the basis of a student’s gender identity. No additional policies are required to protect the rights of transgender students.

However, some districts have adopted ““ or are considering adopting ““ specific policies in order to promote clarity. Such policies should only be adopted after careful consideration, especially in light of Friday’s guidance. If a district adopts a policy stating that transgender students will not be permitted to use restrooms or locker rooms consistent with their gender identity, the policy will be directly contrary to the guidance of the DOJ and OCR, and thus possibly more likely to trigger an OCR complaint. Moreover, if there is such a complaint, the District will be found out of compliance with Title IX by the OCR. On the other hand, adopting a policy that states that transgender students will be permitted to use restrooms and locker rooms consistent with their gender identity may draw protest from the community and create an issue where there has not been one in the past. Thus, many schools are addressing the situation on a case-by-case basis, using the DOJ and OCR position as a guide while balancing the individual needs of the student and the school community. Below, we have included some talking points that can be used as a guide for discussions and decision-making in light of the recent guidance.

Of course, each school district, school, and situation is unique. If you have questions, or would like to discuss this matter further, please do not hesitate to contact us.

[1] 97 F. Supp. 3d 657 (W.D.Pa. 2015)

[2] 2016 U.S. App. LEXIS 7026 (4th Cir. 2016)

TALKING POINTS FOR DISCUSSIONS REGARDING TRANSGENDER STUDENTS IN OUR SCHOOLS

GENERAL

The School District is committed to providing a safe and positive learning environment for all students.
Our board policies demonstrate the District’s commitment to ensuring equal educational opportunities for all students. District schools and personnel work to promote respect among staff and students.
Title IX of the Education Amendments of 1972 prohibits discrimination on the basis of sex in any federally funded education program or activity. Both the United States Department of Justice and the Office for Civil Rights of the United States Department of Education are responsible for the enforcement of Title IX in school districts, and have taken the position that discrimination against transgender students is a violation of Title IX.
As with all students, the District works with transgender students to ensure that they have equal access to educational opportunities and have a safe and positive learning environment.
The District recognizes that the needs of each transgender student are unique. Therefore, there is no “one size fits all” policy.
As a general rule, in accordance with the guidance from the DOJ and the OCR, the District will treat transgender students consistent with the gender with which the students identify.

COMMON ISSUES

PRONOUNS:

Consistent with the guidance from the DOJ and the OCR, District staff and students will address a transgender student by the student’s preferred name and pronoun. Ã˜
This is consistent with the District’s treatment of all students ““ as a general matter, we work with students to honor their preferences with respect to how they are addressed at school.

RESTROOMS:

As appropriate, students will be permitted to use the restroom of the gender with which the student identifies.
This decision is generally made by the school after consultation with the student and the student’s family regarding the student’s needs and preferences, as well as the needs and interests of the other students.
This is consistent with OCR and DOJ guidance, as well as the District’s commitment to providing equal opportunities for all students.
If any student is uncomfortable about using a particular restroom for any reason, that student should consult a school administrator. Administrators can make accommodations to allow students to use alternate restrooms as appropriate.
Any bullying, harassment, or other inappropriate behavior by any student in the restroom will be addressed in accordance with the District’s discipline and nondiscrimination policies.
The District recognizes the importance of privacy for all students using District restroom facilities. The District expects that any individual using a District restroom will respect the privacy of everyone else using that restroom.
Any student with a concern regarding another student’s behavior in a restroom should immediately report that concern to a teacher or administrator.

LOCKER ROOMS:

As appropriate, students will be permitted to use the locker room of the gender with which the student identifies.
This decision is generally made by the school after consultation with the student and the student’s family regarding the student’s needs and preferences, as well as the needs and interests of the other students.
This is consistent with OCR and DOJ guidance, as well as The District’s commitment to providing equal opportunities for all students.
If any student is uncomfortable about using a particular locker room for any reason, that student should consult a school administrator. Administrators can make accommodations to allow students to use alternate facilities as appropriate.
Any bullying, harassment, or other inappropriate behavior by any student in the locker room will be addressed in accordance with the District’s discipline and nondiscrimination policies.
The District recognizes the importance of privacy for all students using District locker rooms. The District expects that any individual using a District locker room will respect the privacy of everyone else using that locker room.
It is a common misconception that students undress completely in locker rooms; typically, there is no nudity in the locker rooms, as students do not fully undress to change into P.E. clothes, nor do students shower. There are private stalls available for students who do need to undress completely in order to change clothes.
Locker rooms are consistently monitored by District staff members to ensure appropriate behavior among students.
Any student with a concern regarding another student’s behavior in the locker room should immediately report that concern to a teacher or administrator.

COMMON QUESTIONS FROM STAFF/OTHER PARENTS/COMMUNITY MEMBERS

What about students who are uncomfortable using the same restroom or locker room as a transgender student?

The District is committed to ensuring that all students have a safe and positive learning environment and equal access to educational opportunities.
Building administrators will make appropriate arrangements for students who are uncomfortable.
The District strongly encourages any student or parent who has a concern about the safety or well-being of a student at school to immediately notify a building administrator about the concern so that it may be addressed as appropriate.

Who has a “right to know” about a transgender student being present at a school?

Transgender students have the same rights to privacy and confidentiality as all students. Therefore, as with any other student, the school cannot discuss information about a specific transgender student.
Information regarding a student’s transgender status may be disclosed as necessary to school officials with a legitimate educational interest in the information.
Who “needs to know” or who has a legitimate educational interest will vary based on the individual circumstances of each case, including the student’s preferences and needs and the school facility and personnel.

What about students who may pretend to be transgender simply to gain access to a restroom of the opposite sex?

This has not been an issue so far.
Decisions will be made on an individualized basis. Typically, District administrators, through their conversations with the student and the student’s family, are able to determine that a transgender student’s gender identity is long-term and consistent across all aspects of the student’s life, thus indicating that the student is not simply trying to gain access to a particular restroom for an improper purpose.
Of course, if a student does gain access to the restroom of the opposite sex ““ whether with the approval of an administrator or not ““ the student is subject to discipline for any inappropriate behavior in the restroom, including behavior that could be construed as sexual harassment, just like any other student who engages in misconduct in a restroom.