education-law

New DOE Guidance on Transgender Students in Schools, Colleges and Universities

May 16, 2016

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On May 13, 2016 the Department of Education Office of Civil Rights (OCR) and Department of Justice Civil Rights Division issued new guidance clarifying the duties of schools, colleges and universities to accommodate transgender students.   The guidance makes it clear that both federal agencies will consider a student’s gender identity as the student’s sex for purposes of enforcing Title IX.  The guidance requires that a school begin treating a student consistent with the student’s gender identity when a student or his/her parent or guardian notifies the school administration that the student will assert a gender identity different from the previous representation or records. 

Importantly, the guidance letter makes clear that educational institutions may not require a medical diagnosis or treatment as a prerequisite to a student being treated in conformity with his or her gender identity.  In fact, requiring such documentation may be in violation of Title IX if it has the effect of limiting the student’s equal access to an educational program or activity.  The notification by the student or the student’s parent or guardian, by itself, is sufficient to trigger duties of the school.

Additional clarification provided by the new Dear Colleague letter include the following:

Non-Discriminatory Environment

In accordance with OCR’s prior position, the letter advises that harassment based on gender identity, transgender status, or gender transition is a form of sexual harassment.  Failure to address such harassment may create a hostile environment which would result in a violation of Title IX.

Restrooms and Locker Rooms

A school can provide separate facilities on the basis of sex under Title IX regulations.  However, a school may not require a transgender student to use facilities that are inconsistent with his or her gender identity or to use individual-user facilities if other students are not required to do so.  A school may, however, make an individual-user option available to all students who wish to use it.

Athletics

While a school may operate or sponsor sex-segregated athletic teams when selection is based upon competitive skill or when the activity involved is a contact sport, it may not adhere to requirements that rely on broad generalizations or stereotypes about the differences between transgender students and other students of the same gender identity or others’ discomfort with transgender students. 

Single-Sex Classes

If a school separates students by sex in classes and activities in appropriate circumstances, the school must allow transgender students to participate consistent with his or her gender identity.

Overnight Accommodations and Housing

Schools must allow a transgender student access to housing or overnight accommodations consistent with his or her gender identity, and may not require the transgender student to stay in a single-occupancy accommodation.  Further, a school may not require a transgender student to disclose personal information when not required of other students.

Student Privacy

The Family Educational Rights and Privacy Act (FERPA) permits disclosure of personally identifiable information from educational records to individual school personnel who are determined to have a legitimate educational interest in the information.  However, the Dear Colleague letter cautions that even if a student has disclosed his or her transgender status to some members of the school community, schools are not necessarily authorized to disclose that information to other school personnel.  Inappropriate disclosure, or requiring the student or the parent to disclose, personally identifiable information to the school community or those not having a legitimate educational interest may be a violation of FERPA and a students’ rights under Title IX.  Schools must consider this when determining what information, if any, to disclose to the community and staff related to transgender students.

Directory Information

FERPA regulations permit the disclosure of appropriately designated directory information from a student’s education record.  Directory information may include a student’s name, address, telephone number, date and place of birth, honors and awards, and dates of attendance.  According to the guidance, school officials may not designate students’ sex, including transgender status, as directory information because doing so could be harmful or an invasion of privacy.

Amendments to Educational Records

Schools often receive requests to correct a student’s education records to make them consistent with the student’s gender identity.  OCR takes the position that updating a transgender student’s records to reflect the gender identity and name change will help protect the privacy of the student and ensure school personnel use the appropriate name and pronoun preferred by the student.   OCR directs that under Title IX, a school must respond to a request to amend information in an education record related to a student’s transgender status in conformity with its general practices for amending other students’ records. 

The letter also addresses requests for amendment or correction of educational records.  Under FERPA, a school must consider the request of an eligible student or parent to amend information to the student’s records that are inaccurate, misleading, or in violation of the student’s privacy right.  If a school does not amend the record, it must inform the requestor of its decision and the right to a hearing.  If the school continues to deny the request after a hearing, it must inform the person making the request of the right to insert a statement in the record with comments on the contested information, a statement that the requestor disagrees with the hearing decision, or both, and said statement(s) must be disclosed whenever the record to which it relates is disclosed.

Sample Policies and Practices

In addition to the Dear Colleague Letter, the Department of Education simultaneously issued a document entitled Examples of Policies and Emerging Practices for Supporting Transgender Students.  The document is a compilation of policies and practices already in use by school districts across the nation to address the needs of transgender students.  In this compilation the Department of Education does not endorse any particular policy but offers examples from actual policies to assist educators who wish to develop policies and practices for their own schools.  The document may be found at http://www2.ed.gov/about/offices/list/oese/oshs/emergingpractices.pdf.

A copy of the Dear Colleague Letter may be found at http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201605-title-ix-transgender.pdf