New Guidelines For Treatment of Transgender Students

Written by: Sean Cox, Esq. and Don Benson, Esq.

This month the United States Departments of Education and Justice issued Guidelines intended to direct educational institutions in how Title IX requirements apply to transgender students, or students whose sex assigned at birth differs from their gender identity. A copy of the Guidelines and suggested practices can be found here. The DOJ and DOE have also issued a “Dear Colleague Letter” that provides school administrators with instructions and explanations on the subject.

Under Title IX, educational institutions, as a condition of receiving federal funds, must agree that they will not discriminate on the basis of the sex of any person in its educational programs or activities. The overriding premise of the new Guidelines is that Title IX’s sex discrimination protections also apply to transgender students.

The Guidelines go into detail regarding potential issues and explain various methods for addressing those issues. However, a few points should definitely be considered:

• Gender Identity: The Guidelines state that a student should be treated consistent with the student’s expressed gender identity. The student should be treated in the same manner as other students of the same gender as the student’s expressed gender identity. The student’s or his parent’s notification of the student’s gender is sufficient. A school should not require any proof or support such as a doctor’s note.
• No Harassment: Schools have a responsibility to provide safe and non-discriminatory educational experience and prevent a hostile environment for transgender students.
• Communications: The Guidelines state that student identification and communication directed at or about the student should use a student’s expressed gender identity.
• Bathrooms and Changing Rooms: The Guidelines state a student’s access to sex-segregated facilities and activities should be based upon the student’s expressed gender identity. Specifically, transgender students should not be required to use only single-user or unisex restrooms or facilities when other students are not required to do so. Unisex facilities ARE permissible if all students are permitted to use such facilities.
• Privacy: The Guidelines state that personally identifiable information should be protected. Personally identifiable information includes a student’s sex at birth.

These issues should not be taken as an exhaustive list, but should only be thought of as examples. While these Guidelines are not new law, they do represent how the Departments of Education and Justice intend to apply existing Title IX requirements. The Guidelines suggest under what circumstances the department could find a violation or institute enforcement action.

These Guidelines are controversial and will present difficult decisions to administrators and educators.  For example, if you are in a jurisdiction where state law directs school systems to act  differently in providing bathroom access,  school administrators should consult with counsel about such conflicting obligations and policy decisions. The prior “compromise” of directing only transgender students to use unisex bathrooms is no longer acceptable under the Guidelines, because it singles out transgender students when other students are not also restricted to the unisex bathrooms.

Hall Booth Smith attorneys are available to help advise on these issues through both the HBS employment and educational practice groups.