Recent guidance from the federal government has raised the question of what obligations public schools, colleges, and universities have with respect to transgender individuals. Since 2008, the Iowa Civil Rights Act has prohibited discrimination in employment and education based on an individual's "gender identity." However, federal anti-discrimination statutes have never been amended to similarly protect individuals from discrimination on the basis of gender identity. Several states, including North Carolina, have recently adopted so-called "bathroom laws" that require individuals to use the facilities of the sex they were assigned at birth, rather than their gender identity. In response to this state-level legislation, the U.S. Department of Education ("USDE") and the U.S. Department of Justice ("USDOJ") released a "Dear Colleague" Letter on May 13, 2016 to make clear that these enforcement agencies view gender identity as a subset of sex discrimination, which is already prohibited by federal law.
Title IX and Transgender Issues
The May 13 Dear Colleague letter is intended to answer the "increasing number of questions from parents, teachers, principals, and school superintendents about civil rights protections for transgender students." The Dear Colleague Letter opines that Title IX, the federal law that "prohibits sex discrimination in educational programs and activities operated by recipients of Federal financial assistance," covers discrimination and harassment based on an individual's gender identity, whether or not the conduct is of a "sexual" nature.
For clarification, the Dear Colleague Letter uses the following definitions:
- Gender identity refers to an individual's internal sense of gender. A person's gender identity may be different from, or the same as, the person's sex assigned at birth.
- Sex assigned at birth refers to the sex designation recorded on an infant's birth certificate should such a record be provided at birth.
- Transgender describes those individuals whose gender identity is different from the sex they were assigned at birth. A transgender male is someone who identifies as male but was assigned the sex of female at birth; a transgender female is someone who identifies as female but was assigned the sex of male at birth.
As a general matter, schools1 must not treat students differently based on gender identity, including transgender status. In accordance with previous Title IX guidance, schools must provide a "safe and nondiscriminatory environment for all students," and "[i]f sex-based harassment creates a hostile environment, the school must take prompt and effective steps to end the harassment, prevent its recurrence, and, as appropriate, remedy its effects."
To this end, the Dear Colleague Letter directs schools to treat students consistent with their gender identity, regardless of their sex assigned at birth. Schools are directed to use a student's gender identity as supplied by a parent or guardian, due to the difficulty in obtaining documentation of a nonconforming gender identity. Transgender students are also entitled to have names and pronouns used that are consistent with their gender identity.
Schools are cautioned of their obligation under the Family Educational Rights and Privacy Act ("FERPA") to avoid nonconsensual disclosure of student information that would interfere with the student's privacy related to their gender identity, which might include the student's birth name or sex assigned at birth. "Directory information," which may generally be disclosed without prior consent from the parent or eligible student should not include disclosure of sex or gender identity. Schools are encouraged to consider the request of a parent or eligible student to amend information in the student's education records in accordance with FERPA to ensure that the student's gender identity and new name are reflected. The Dear Colleague Letter states that, under Title IX, schools will be expected to respond to these requests consistent with their general practices for amending other students' records.
Another key aspect of the guidance is on the use of traditionally "sex-segregated" facilities and activities, including:
- Bathrooms and Locker Rooms: Schools are directed to allow transgender students to use restroom and locker facilities consistent with their gender identity, rather than their sex assigned at birth. Under the guidance, schools should not require a transgender student use an individual-use facility (such as the nurse's office bathroom), but may have individual-use facilities available for any student, regardless of gender identity.
- Athletics: Schools are cautioned not to rely on "overly broad generalizations or stereotypes" about the differences between transgender and other students of the same sex in sex-segregated athletic programs. Limitation on which gender or gender-identifying students participate on a sex-segregated athletic team should be based on "age-appropriate, tailored requirements based on sound, current, and research-based medical knowledge about the impact of the students' participation on the competitive fairness or physical safety of the sport."
- Housing and travel: Housing and overnight accommodations should be provided consistent with a transgender student's gender identity, without requiring a transgender student to stay in an individual room or disclose personal information (i.e., their sex assigned at birth) to a roommate unless the same information is required of other students.
The Dear Colleague Letter also cautions schools to take these steps regardless of the objections of other students, parents, or the community.
As a practical matter, the May 13 Dear Colleague Letter has not significantly changed the landscape for Iowa's education institutions. Transgender students continue to be protected from discrimination in education and public accommodations under the Iowa Civil Rights Act. Both the Iowa High School Athletic Association and the Iowa Girls High School Athletic Union have addressed participation of transgender athletes in interscholastic athletic programs. However, the Dear Colleague Letter does serve to notify Iowa education institutions that a new avenue for enforcing protection of transgender individuals is now available under Title IX. This includes application of any remedies for violations of Title IX that are not otherwise available under the Iowa Civil Right Act.
On May 25, 2016, officials from Texas and ten other states filed suit in federal court challenging the administrative guidance in the Dear Colleague Letter. We will monitor this lawsuit as it progresses through the courts. Should you have any questions about any of this information, please contact us.
Ahlers & Cooney Education Practice Group
1 The Dear Colleague letter is geared primarily towards elementary and secondary (K-12) schools. However, because Title IX covers all educational institutions receiving federal financial aid, including institutions of higher education, the guidance document should be read as equally applicable to colleges and universities. We also note that Title IX generally protects all participants in a covered entity from discrimination, not just students.
- U.S. Department of Education and U.S. Department of Justice, Dear Colleague Letter on Transgender Students: www2.ed.gov/about/offices/list/ocr/letters/colleague-201605-title-ix-transgender.pdf
- U.S. Department of Education, Examples of Policies and Emerging Practices for Supporting Transgender Students: www2.ed.gov/about/offices/list/oese/oshs/emergingpractices.pdf
- IHSAA, Transgender Statement: www.iahsaa.org/wp-content/uploads/2014/04/Transgender-Guidelines.pdf
- IGHSAU, Transgender Statement: ighsau.org/2014/08/22/transgender-statement/
- The Washington Post, Eleven States Sue Obama Administration over Bathroom Guidance for Transgender Students: https://www.washingtonpost.com/news/post-nation/wp/2016/05/25/texas-governor-says-state-will-sue-obama-administration-over-bathroom-directive/
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