Over the past year, there have been a number of significant developments concerning a school district’s obligations toward transgender students. Even still, a lot remains unsettled. On May 13, 2016, the Department of Education released a Dear Colleague Letter, offering guidance on civil rights protections for transgender students. Title IX of the Education Amendments of 1972 and its implementing regulations prohibit sex discrimination in educational programs and activities operated by recipients of federal financial assistance. According to the Dear Colleague Letter, Title IX protection encompasses discrimination based on a student’s gender identity, including discrimination based on a student’s transgender status. Here are the highlights:
- A student’s gender identity should be treated as the student’s sex for purposes of Title IX and its implementing regulations. Thus, a school must not treat a transgender student differently from the way it treats other students of the same gender identity.
- When a school is notified that a student will assert a gender identity that differs from school records, the school should begin treating the student consistent with the student’s gender identity. Requiring specific identification documentation may violate Title IX.
- Schools ultimately have a responsibility to provide a safe and nondiscriminatory environment for all students, including transgender students. If 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.
- A school must treat students consistent with their gender identity even if their records indicate a different sex. This includes using pronouns and names consistent with their gender identity.
- When schools provide sex-segregated activities and facilities, transgender students must be allowed to participate consistent with their gender identity. This includes locker rooms and restrooms, sex-segregated classes, housing and overnight accommodations, and with respect to other sex-specific activities and rules.
- Districts must take reasonable steps to protect a students’ privacy related to their transgender status, including their birth name and sex assigned at birth, or run the risk of violating the student’s privacy rights or the Family Educational Rights and Privacy Act, which protects against the disclosure of personally identifiable information. School personnel must have a “legitimate educational interest” in the information to permit disclosure.
- Schools must consider the request of an eligible student or parent to amend information in the student’s education records that is inaccurate, misleading, or in violation of a student’s privacy rights. If no amendment is allowed, the school must inform the requestor of its decision and of the right to a hearing. If the school does not allow the amendment after a hearing, the requestor is allowed to insert a statement in the record. Schools must respond to a request to amend information related to a student’s transgender status consistent with its general practices for amending other students’ records.
Despite the federal guidance, Texas law and school policy is unsettled. The Dear Colleague Letter has sparked a lawsuit by eleven states, including Texas, which seeks to block enforcement of the guidelines. In addition, effective August 1, 2016, new rules by the University Interscholastic League require the league to use a birth certificate in determining questions about a student-athlete’s gender. Although this rule has been approved by UIL, that does not mean it can’t be subject to a legal challenge. Also, on June 28, 2016, Texas Attorney General Ken Paxton issued an opinion stating that Forth Worth ISD’s transgender policy violated Chapter 26 of the Education Code to the extent that it encourages a child to withhold information from his or her parents.
On the other hand, some courts are applying the Department of Education guidance in legal challenges. For example, there has been quite a bit of activity in the Virginia case, G.G. v. Gloucester Cnty. Sch. Bd., No 15-2056. This case involves a transgender male, who sued to allow access to the boy’s restroom in accordance with his gender identity. The Fourth Circuit Court of Appeals previously ruled that the trial court had to give deference to the Department of Education’s guidance. The trial court then ordered the school system to allow the student to use the boys’ restroom. An injunction was issued barring the school board from enforcing its policy that required students to use restrooms based on their biological gender or a private single bathroom accommodation. The school board appealed and asked for a stay of the injunction, but the trial court and appeals court denied the stay. Then, on July 14, 2016, the board took their request to the United States Supreme Court, asking the Court to block the injunction pending appeal. This only highlights the unsettled nature of this emerging area. The best course of action is to contact legal counsel if an issue arises on your campus.[/s2If]