Department of Education and Department of Justice Issue Joint Dear Colleague Letter on Transgender Students

By May 13, 2016 Michelle Todd, News No Comments

The U.S. Department of Education, Office for Civil Rights, and the U.S. Department of Justice issued a Dear Colleague Letter (“DCL”) on the rights of transgender students. The Departments confirm the federal government’s position that Title IX’s prohibition on sex discrimination includes discrimination based on a student’s transgender status. The letter addresses several issues with respect to school district treatment of transgender students, which are outlined below. The DCL  is available online here:

http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201605-title-ix-transgender.pdf

Identification of Transgender Students 

First, the DCL makes clear that a student’s expression of their preferred gender identity is sufficient for Title IX protections. School districts cannot require a medical diagnosis or treatment regimen as a prerequisite to treating the student consistent with their gender identity. Requiring students to produce identification documents affirming their gender identity may violate Title IX if it limits or denies students equal access to educational programs or activities. The letter also requires that districts use pronouns and names consistent with a transgender student’s gender identity.

Transgender Student Participation in Sex Segregated Activities and Facilities 

The DCL provides when a school offers sex-segregated activities and facilities, transgender students must be allowed to participate in these activities consistent with their gender identity.

  • Facilities: Schools must allow transgender students access to sex-segregated facilities (e.g. bathrooms, locker rooms, etc.) consistent with their gender identity. Further, the letter provides that transgender students cannot be required to use individual-user facilities (e.g. a single occupancy bathroom in the nurse’s office) when other students are not required to do so. Schools may make individual-user facility options available to all students.
  • Activities: In reference to extracurricular activities, sex-segregated athletics are permissible under Title IX; however, transgender students must be allowed to participate in the activity consistent with their gender identity.
  • Single-Sex Classes: The letter provides that though single-sex classes are generally impermissible, where they are allowed, schools must allow transgender students to participate consistent with their gender identity.
  • Overnight Accommodations/Field Trips: Schools must allow transgender students access to housing consistent with their gender identities and must not require students to stay in single occupancy rooms when other students are not subject to such a requirement.

Education Records – Disclosure of Directory Information 

The letter concludes with a warning to school districts that “non-consensual disclosure of directory information could be harmful to or invade the privacy of transgender students and may also violate the Family Educational Rights and Privacy Act (“FERPA”).” Under FERPA, 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 DCL, schools may not designate students’ sex (including transgender status) as directory information because such designation “could be harmful or an invasion of [the student’s] privacy.”

The Illinois School Student Records Act specifically designates gender as permissible directory information.  Districts should consult with legal counsel on their policy definition of “directory information” before disclosing student gender in response to an information request.

Finally, the letter provides that schools may continue to maintain records with information about students’ birth names and sex assignment at birth, but that such records should remain confidential.

Guidance

In addition to the Dear Colleague Letter, the Office of Safe and Healthy Students at the U.S. Department of Education published a guide entitled “Examples of Policies and Emerging Practices for Supporting Transgender Students.” This guide provides examples from across the country of best practices policies for addressing the needs of transgender students.

Please contact Michelle Todd or Kaitlin Atlas with your inquiries about transgender students. 

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