Beyond the Bathroom – New Federal Guidance on Our Responsibilities to Transgender Students Under Title IX

Dominating a fair segment of the legal world at the moment, transgender issues extend deeply into the worlds of both the public and private sectors.  Employment discrimination, accommodations, equal treatment in business dealings – the list goes on.

Probably no one sector is more affected by the emergence of these modern issues than the world of education.  Here, we see all the issues being addressed by everyone else plus those issues unique to our setting.  The world continues to change.

This note briefly advises on recent developments from the Feds and courts in transgender issues in the schools.

FROM THE DEPARTMENTS OF EDUCATION AND JUSTICE

On May 13, 2016, the United States Departments of Justice and Education issued their joint “Dear Colleague letter” (“DCL”) directed at all educational institutions receiving federal funding.  The agencies’ letter provides that the Title IX prohibitions against sex discrimination in educational programs specifically extends to discrimination based on a student’s gender identity and transgender status.

These issues are new to many.  And, we are charged with implementing programs that do not run afoul of a transgender person’s rights, as well as introducing an unfamiliar language to be used in what is to become everyday parlance.

While the legal requirements are the same for all students, a basic understanding will likely be helpful as we analyze the particular issues we may be facing.

• Gender Identity – An individual’s internal sense of gender and may be different from the person’s sex assigned at birth
• Sex Assigned at Birth – Sex designation recorded on the person’s birth certificate
• Transgender – An individual whose gender identity is different from the sex they were assigned at birth.
  • Transgender Male – Someone who identifies as male but was assigned the sex of female at birth
  • Transgender Female – Identifies as female but was assigned sex of male at birth
• Sexual Orientation – The type of sexual, romantic, emotional, and/or spiritual attraction a person feels for others.
• The above terms are not meant to be inclusive of the ways that a person may identify their gender or sexuality.

We must have this language down for all the reasons one can think of.  We must commit to proper, eased use of this language.

There are also medical diagnoses of “gender identity disorder” and “gender dysphoria,” which are described in the DSM IV and DSM-5 respectively. However, the federal government does not require any such diagnosis to invoke the obligations stated in the agency guidance.

Schools’ Obligations Under the Dear Colleague Letter

The US. Department of Justice (“DOJ”) and the Office of Civil Rights (“OCR”) within the U.S. Department of Education are charged with enforcing Title IX and other civil rights laws.  The Dear Colleague Letter provides notice to educational institutions about how DOJ and OCR interpret Title IX for purposes of their enforcement activities, which are often undertaken in response to a complaint.

As detailed in the DCL, the DOJ and OCR interpret sex based discrimination under Title IX to include any discrimination based on an individual’s gender identity.  Although a Title IX violation may result in a loss of federal funding, a finding of non-compliance is most likely to result in the funding recipient having to revise policies and procedures subject to OCR’s approval, provide training approved by OCR, undertake data collection and comply with onerous reporting requirements to establish compliance.  Educational institutions must be mindful that a discrete complaint may result in an expansive investigation focused on systemic issues and more wide-spread non-compliance. Based on the Departments’ interpretation, Title IX requires schools to provide transgender students with equal access to educational programs and activities even when other members of the community may raise objections, regardless of their number.

Under the federal guidance, when a student or a parent or guardian notifies the school that the student wants to assert an identity different from the student’s previous representations or records, the school must begin treating that person consistent with their requested gender identity. The student doesn’t have to produce a medical diagnosis or meet any type of prerequisite before we are expected to begin treating that student based upon their desired gender identity. Once the intention is made known, schools must begin to treat that student based on their identified gender regardless of what administrative issues we may face.

Under the Agencies’ present interpretation, we must provide a safe and nondiscriminatory environment for all of our students. Any form of harassment—whether from school employees, other students, or community members—that targets a student based on their gender identity, gender status, or gender transition is now considered a Title IX violation. Once a school learns of such harassment, we have a responsibility to take prompt and effective steps to stop the harassment, prevent it from recurring, and providing appropriate remedies its effects. Also included in the federal government’s interpretations is an obligation to use the student’s desired name and pronouns associated with their identified gender identity.

A major point of contention with regard to the federal agencies’ interpretation has to do with sex-segregated activities and facilities, such as sports, locker rooms, and especially bathrooms. Based on the Departments’ interpretations, once a school is notified that a student wants to be identified with a different gender, we must allow the student to participate in activities and access facilities consistent with their gender identity. This includes bathrooms, locker rooms, single-sex classes, and housing. Under limited circumstances, we are not required to allow a transgender student to participate in sex-segregated athletic teams, single-sex fraternities and sororities, or to admit a transgender student to a single-sex school inconsistent with their birth gender.  Further, the federal agencies are clear that schools cannot simply provide a single-sex bathroom or locker room to avoid those requirements because it would result in “separate-but-equal” facilities found impermissible during the Civil Rights era.

Based on the recent decisions on Same-Sex Marriage and with new guidance from the Federal government on transgender students, it is clear that the rights of Lesbian Gay Bisexual and Transgender (LGBT) individuals is one of the thrusts of the new Civil Rights era of today.

The Response To Date

The DCL has been met with strong opposition. Shortly after it’s issuance, eleven (11) states including Georgia, Tennessee, and Alabama joined a lawsuit filed in Texas to stop the current administration from enforcing its interpretation of the laws. More recently, 10 more states filed suit in Nebraska, including South Carolina. On August 21, 2016, a Federal Judge in Texas issued a nationwide injunction against the Dear Colleague guidance and its requirements.

These suits are in addition to the showdown between North Carolina and the Department of Justice regarding its law requiring transgender students to use facilities associated with their birth gender. The most recent decision by a Federal Court in Virginia upheld a transgender teen’s right to use the boy’s bathroom at his high school. However, on August 8th, the Supreme Court put that decision on hold to allow the school district to petition the Supreme Court to seek a review of the lower court’s decision.

On August 15, 2016, the Georgia High School Association unanimously voted to change their By-Laws to allow girls to compete on boys’ athletic teams when there is no girls’ team in the same sport. However, it refused to allow boys to compete in “girls’ sports.” Further, the GHSA agreed to honor gender determinations made by any GHSA member school and will take all reasonable steps to accommodate requests for private restroom or locker/dressing room facilities for any requesting student(s) at GHSA playoff events. However, GHSA will not require any student to use private facilities.

These multitude of decisions, lawsuits and an upcoming election make clear that these issues will continue to be an area that we must be well-versed on and be prepared to deal with the legal challenges and complexities ahead.

Closing

The federal involvement in these issues is just beginning, and the issue is loaded with its own special  variety of legal traps and problems.  We want to partner with you to provide services to your students and communities while meeting the most current Federal requirements.  When issues come up, please do not hesitate  to contact us and let us help you in finding the most intelligent, workable, and efficient legal strategies and outcomes available