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

Issues regarding transgender students continue to dominate public debate as well as creating multiple lawsuits.  Below we review the variety of ongoing transgender student issues.

Dear Colleague Letter 

As we recently reported in an e-mail blast to readers of The Extra Mile, on Friday, May 13, the U.S. Department of Education, Office for Civil Rights and the U.S. Department of Justice issued a “Dear Colleague Letter” on the rights of transgender students.

The Departments confirmed 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. The following issues were addressed by the DCL:

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 an educational program or activity. The letter also requires 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 provides 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 practice policies for addressing the needs of transgender students.

On May 25, 2016, eleven states (Texas, Alabama, Wisconsin, West Virginia, Tennessee, Maine, Oklahoma, Louisiana, Utah, the Arizona Department of Education, and Georgia), along with a few independent school districts, filed a lawsuit in the U.S. District Court for the Northern District of Texas against the U.S. government over the “Dear Colleague Letter.” The lawsuit alleges that the “Dear Colleague Letter” in effect creates new rules, regulations, guidance and interpretations of Title IX without following rulemaking procedures required by law. The lawsuit further alleges that this creation of new rules and regulations exceeds congressional authorization, violates the Constitution, and deprives states of their sovereign immunity. Finally, the lawsuit alleges that the new rules and interpretations are arbitrary and capricious, unlawful, and unconstitutional. HLERK will continue to follow this lawsuit as it develops. 

Lawsuit Filed Against Township High School District 211, Department of Education, and Department of Justice Over Transgender Student Rights Settlement

In December 2015, The Extra Mile reported that the United States Department of Education reached a settlement agreement with District 211 over a transgender student’s access to certain facilities consistent with her identified gender. Under the settlement agreement, the district agreed to allow a transgender female student to access girls’ locker rooms at the school provided the transgender female changed in a private area.

Further, the district agreed to install a private changing area and shower in the locker rooms and agreed to allow any student to use this private area. Finally, the district agreed to engage an expert in child and adolescent gender identity and to revise the district’s nondiscrimination notice to provide additional information about sex discrimination. The district also agreed to provide a support team to the transgender student if requested.

On May 4, 2016, a group called Students and Parents for Privacy, along with several individually named plaintiffs, filed a lawsuit against District 211, the United States Department of Education, John King (the Secretary of Education), the United States Department of Justice, and Loretta Lynch (the Attorney General) alleging that by entering into the settlement agreement these parties “trample[d] students’ privacy and other constitutional and statutory rights.” The complaint also seeks to set aside the Department of Education’s rule interpreting the term “sex” in Title IX to include gender identity. The complaint specifically alleges that the defendants have violated the plaintiffs’ fundamental rights to privacy, the plaintiffs’ fundamental rights to direct the education and upbringing of their children, Title IX, the Illinois Religious Freedom Restoration Act, the federal Religious Freedom Restoration Act, and the First Amendment.

On May 10, 2016, the ACLU announced its plans to intervene in the lawsuit on behalf of concerned parents, students and community members. Most recently, the student at the center of the controversy may seek to intervene in the litigation.

North Carolina Passes House Bill 2, “Bathroom Bill”

Bathroom use for transgender individuals continues to be an issue outside of the school setting as well. Recently, North Carolina passed House Bill 2, which has been dubbed the “bathroom bill.” The bathroom bill requires individuals to use bathrooms that correspond to their biological sex. On May 9, 2016, the Department of Justice filed a lawsuit alleging that House Bill 2 discriminates against transgender individuals. On the same day, North Carolina Governor Pat McCrory filed a lawsuit alleging that the Department of Justice was overreaching. We trust that this case will continue to be widely publicized, and we will continue to keep you apprised of any relevant developments.

PRESS Policy Updates

As many of our clients are already aware, IASB’s PRESS policy service has an administrative procedure on accommodating transgender students, Administrative Procedure 7:10. IASB’s legal counsel has advised us that this policy will be revised and the revisions will be released in the next update.

Please contact Michelle Todd, Stephanie Jones, or Kaitlin Atlas with your transgender student inquiries.

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