Phil Catanzano is a Senior Counsel in Holland & Knight's Boston office
Paul Lannon Jr. and Miriam McKendall are Partners in Holland & Knight's Boston office

HIGHLIGHTS:

  • The U.S. Department of Education and the U.S. Department of Justice issued a significant guidance document stating that transgender students should be provided rights and opportunities consistent with their gender identity. Failure to do so could constitute discrimination in violation of federal law.
  • Institutions should proactively review and revise their policies, adapt signage and facilities, and train their communities to understand how they define and respond to gender identity in practice.

Two divisions of the federal government have weighed in on the recent legal controversies surrounding accommodations for transgender students. The U.S. Department of Education's Office for Civil Rights (OCR) and the U.S. Department of Justice (DOJ) jointly issued "significant guidance" on the rights of transgender students and the approaches educational institutions should consider to ensure that transgender students are not discriminated against on the basis of gender identity. The guidance was published on May 13, 2016, in the form of a Dear Colleague Letter.

While Dear Colleague Letters are not law, they are strong indications of how the government has and will continue to interpret and enforce the laws within their purview, in this case Title IX of the Education Amendments of 1972. This particular guidance also comes in the wake of highly publicized debates over the rights of transgender individuals, as well as a recent decision from the U.S. Court of Appeals for the Fourth Circuit holding in favor of a student who sought to use a bathroom consistent with his gender identity. In doing so, the court affirmed the federal government's interpretation of Title IX.

This alert will summarize the Dear Colleague Letter, while also providing practical guidance for educational institutions to address the accommodation of transgender students.

Preventing Discrimination Against Transgender Students

On the core question of whether educational institutions can treat transgender students differently than other students with the same gender identity, the DOJ and OCR answered unequivocally no. In the Dear Colleague Letter, they explain that to do so may constitute sex discrimination in violation of Title IX. Schools also cannot impose on transgender students threshold medical or identification requirements. According to the DOJ and OCR:

"... there is no medical diagnosis or treatment requirement that students must meet as a prerequisite to being treated consistent with their gender identity. Because transgender students often are unable to obtain identification documents that reflect their gender identity...requiring students to produce such identification documents in order to treat them consistent with their gender identity may violate Title IX when doing so has the practical effect of limiting or denying students equal access to an educational program or activity."

See Dear Colleague Letter on Transgender Students, p. 2.

Objections from other members of the school community may not override the legal obligation to prevent sex discrimination. Educational institutions must ensure nondiscrimination for transgender students "even in circumstances in which other students, parents, or community members raise objections or concerns. ... [T]he desire to accommodate others' discomfort cannot justify a policy that singles out and disadvantages a particular class of students." See id.

Schools also have an affirmative obligation to protect transgender students' privacy to ensure they are treated consistent with their gender identity. Specifically, the Dear Colleague Letter indicates that it may constitute "a Title IX violation ... [if a school] fail[s] to take reasonable steps to protect students' privacy related to their transgender status, including their birth name or sex assigned at birth." See id., p. 4. Disclosure of such private information may also violate the Family Educational Rights and Privacy Act (FERPA).

Simultaneous with the issuance of the Dear Colleague Letter, the U.S. Department of Education also published Examples of Policies and Emerging Practices for Supporting Transgender Students. The publication provides helpful examples of policies and practices regarding privacy protections, facilities access and usage, prevention of bullying and additional resources for ensuring the protection of transgender students. The federal government also discussed certain specific examples within the Dear Colleague Letter:

Single-Sex Schools, Fraternities and Sororities

Importantly, the Dear Colleague Letter notes that single-sex institutions and entities that are otherwise not subject to Title IX are permitted "to set their own policies regarding the sex, including gender identity of their members." This exemption generally applies to fraternities, sororities, private single-sex undergraduate colleges, certain nonvocational elementary and secondary schools, and schools that do not receive federal funding. The DOJ and OCR further note that nothing in Title IX prohibits these institutions from admitting transgender students voluntarily.

Restrooms, Locker Rooms and Beyond

As acknowledged in the Dear Colleague Letter, federal law permits "schools to provide sex-segregated restrooms, locker rooms, shower facilities, housing, athletic teams, and single-sex classes under certain circumstances." However, "[w]hen a school elects to separate or treat students differently on the basis of sex..., [the school] generally must treat transgender students consistent with their gender identity." This was the matter at issue in G.G. v. Gloucester County School Board, in which a transgender student alleged that a Virginia school district barred him from the boys' restroom in violation of Title IX. The student cited the OCR's earlier guidance, but the trial court dismissed his claim, ruling that Title IX permits schools to offer separate bathroom facilities for members of each sex. On appeal, the Fourth Circuit overruled the trial court and reinstated the student's Title IX claim. The Fourth Circuit determined that the Title IX regulations permitting separate bathrooms for each sex could be understood to refer to biological sex or to a broader definition of sex that incorporated gender identity. Accordingly, the Fourth Circuit ruled that the trial court should defer to the OCR's interpretation, which would require schools to permit transgender students to use facilities consistent with their gender identity rather than their sex assigned at birth.

Practical Suggestions

Navigating a course that avoids discrimination while addressing the legitimate needs and interests of an educational community is not always easy. The following are some practical suggestions for institutions to consider in accommodating transgender students:  

Review and Clarify Relevant Policies

Educational institutions subject to Title IX should revise their policies and procedures to track the federal government's guidance. Facilities may still be segregated on the basis of sex in certain instances, but policies should be clear that a student's gender identity defines which facility the student is allowed to use. Institutions should also identify and offer the use of gender-neutral, individual-user facilities to any student who does not want to use shared sex-segregated facilities.

Be alert to the variety of activities during which students may be treated differently based on gender identity and revise policies accordingly. Examples provided by the federal government include access to gender-specific extracurricular programs, housing and athletics. With respect to athletics, the Dear Colleague Letter references the National Collegiate Athletic Association's (NCAA) 2011 policy for participation by transgender students in college athletics. In revising policies related to intercollegiate athletics, colleges should strive for compliance with the NCAA policy, the Dear Colleague Letter, and any league or conference rules and guidance relevant to their teams. 

Improve Signage and Documents

Schools and colleges should strive to create clear, useful signage around their sex-segregated facilities. If facilities are gender specific, the institution should clarify that it interprets gender consistent with an individual's gender identity and not his or her gender assigned at birth. If gender-neutral facilities are available nearby, institutions should point out where they are located so the user has the option to choose which facility to use. When individuals are signing up for sex-specific housing or teams, the sign-up forms should similarly make clear how the institution defines gender in that context.

Institutions should also strongly consider amending education records to reflect the student's gender identity, and utilizing the appropriate pronouns in communicating with students and others on campus.

Train the Community

Finally, policies are only as effective as their implementation. Accordingly, it is critical that institutions train faculty and staff about transgender issues and on how to implement transgender policies fairly and effectively, with sensitivity to privacy and safety issues in particular.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.