On May 13, 2016, the Obama Administration, through the U.S. Department of Education and the Department of Justice (the “Departments”), provided directives pursuant to Title IX to school districts across the nation to ensure that transgender students can attend school free from discrimination. The Departments issued a “Dear Colleague Letter” (“Letter”) and classified the Letter as “significant guidance.”
Title IX is a clause in the 1972 Education Amendment which specifically states, “No person in the Unites States 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 ….” The outstanding question is whether sex discrimination under Title IX includes discrimination against transgender students.
Last week, President Obama appeared to drop a bombshell on public schools. The truth is, federal agencies were already way ahead of him. In April 2014, the U.S. Department of Education, the Office of Civil Rights (OCR) issued guidance indicating that Title IX sex discrimination prohibition extended to claims of discrimination based on gender identity. In the Letter issued last Friday, the Departments specifically indicate that a student’s gender identity is the same as the student’s sex for purposes of Title IX. The Letter further states that a school district must not treat a transgender student differently from the way it treats other students. As with the prior guidance issued by the Departments, the Letter does not have the full force and effect of federal law or regulation; however, the message that is being sent to school districts as a result of this letter is to comply with the recommendations set forth in the Letter or risk lawsuits and/or loss of federal funds.
The Letter addresses many questions which have been presented to school districts regarding transgender students. The Letter sets forth the following guidance:
- Title IX requires school districts to treat students consistent with their gender identity even if their education records or identification documents indicate a different sex. School districts must call the student by his or her preferred name and use the pronouns congruent to the student’s gender identity.
- Title IX requires school districts to permit students to use the restrooms and locker rooms consistent with their gender identity.
- Title IX requires school districts to allow students on overnight school-sponsored events to use accommodations consistent with their gender identity.
- Athletics: Title IX regulations permit a school to operate or sponsor sex-segregated athletic teams when selection for such teams is based upon competitive skill or when the activity involved is a contact sport. A school may not, however, adopt or adhere to requirements that rely on an overly-broad generalization or stereotypes about the differences between transgender students and other students of the same sex (i.e., the same gender identity) or others’ discomfort with transgender students.
- Same-sex classes: While this is generally not prevalent, there may be times when a non-vocational single-sex class and extra-curricular activities are offered under certain circumstances. When offering these classes or activities, a school district must allow transgender students to participate in the class or activity which is consistent with their gender identity.
- Student records: When a request is received by a school district with regard to the disclosure or amendment to educational records, the school district must follow the standards set forth under the Family Educational Rights and Privacy Act (“FERPA”).
Current Caselaw
Currently, there are a number of cases working their way through various courts regarding allegations of discrimination against transgender students. Previously, there was a court case pending in the Third Circuit against the University of Pittsburgh which involved a transgender student’s challenge to the University of Pittsburgh’s refusal to permit him to use the locker room which was consistent with his gender identity. This case was settled in March of 2016. The terms of the agreement were confidential; however, a joint statement was made by the parties whereby they outlined a number of concessions made by the University of Pittsburgh, including transgender students being permitted to use restrooms that correspond with their gender identity, the University establishing gender-neutral restrooms, and the University establishing a working group to advise officials on transgender students’ access to gender-specific spaces.
In April of 2016, the 4th Circuit addressed allegations from a transgender student who felt that he was being discriminated against when he was precluded from using a restroom that corresponded with his gender identity. The 4th Circuit relied upon the OCR’s interpretation of Title IX and extended the definition of sex to include a student’s gender identity. The case has been remanded to the Federal District Court to examine whether the school district’s restroom policy violates Title IX as interpreted by the 4th Circuit.
Many other school districts, while not sued, have faced investigations by the OCR based upon allegations of discrimination against transgender students. When the investigations have found discrimination, the parties have entered into Resolution Agreements whereby the school districts must implement measures and practices to ensure the privacy, safety, and inclusion of transgender students. When districts have refused to comply with the recommendations of the OCR, they have been threatened with the loss of federal funding. These federal funds help to support programs like free and reduced paid lunches, technology, bi-lingual education, and special education programs.
Bottom Line for School Entities
When confronted with requests or questions by students or their parents regarding the use of a restroom of the opposite sex or a request to be referred to by a different name, it is best to assemble a team of individuals; i.e., guidance counselors, building principals, trusted teachers, to discuss and consider the students’ requests. Many people have raised concerns that students will simply assert that they are transgender to gain access to the girls’ restroom. The Letter only provides directives when dealing with bona fide requests which have been vetted by the assembled team. The directives set forth in the Letter do not require action by school districts when the requests are reckless or prankish.
While issues concerning transgender students continue to be litigated throughout the court system, the President, through the Departments, is sending a clear message to school districts regarding the federal government’s interpretation of Title IX. While some states have vowed not to follow the guidance, it is best to contact your solicitor when facing questions regarding transgender students so that you may avoid allegations of discrimination. If you have questions concerning transgender students in your school, or would like to schedule a training, please contact KingSpry.
School Law Bullets are a publication of KingSpry’s Education Law Practice Group. It is meant to be informational and does not constitute legal advice. John E. Freund, III, is our editor.
