May 17, 2016
On May 13, 2016, the U.S. Departments of Education and Justice (the "Departments") issued a Dear Colleague Letter on Transgender Students in response to questions the federal government has increasingly received from students, parents, teachers, principals, and school superintendents from across the country regarding the civil rights protections of transgender students under Title IX of the Education Amendments of 1972 ("Title IX") and its implementing regulations.
Under Title IX,
No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.
In their joint guidance, the Departments not only underscore that Title IX protects all students from being discriminated based on sex, but more importantly clarify that this prohibition of sex discrimination includes discrimination based on a student’s gender identity or transgender status.
With the goal of informing schools of their Title IX obligations regarding transgender students, the Dear Colleague Letter addresses the following areas: 1) providing a safe and nondiscriminatory environment for all students; 2) appropriateness of relying on identification documents and use of names and pronouns; 3) access to sex-segregated activities and facilities, including issues surrounding restrooms and lockers, athletics, single-sex classes, single-sex schools, social fraternities and sororities, and housing and overnight accommodations; and 4) protecting a student’s privacy and avoiding the nonconsensual disclosure of personally identifiable information that may violate the Family Educational Rights and Privacy Act ("FERPA").
According to the Dear Colleague Letter, the "Departments interpret Title IX to require that when a student or the student’s parent or guardian, as appropriate, notifies the school administration that the a student will assert a gender identity that differs from previous representations or records, the school will begin treating the student consistent with the student’s gender identity." The joint guidance further highlights, "A school’s Title IX obligation to ensure nondiscrimination on the basis of sex requires schools to provide transgender students equal access to educational programs and activities even in circumstances in which other students, parents, or community members raise objections or concerns."
In addition to the joint guidance, the Office of Elementary and Secondary Education of the U.S. Department of Education concurrently released Examples of Policies and Emerging Practices for Supporting Transgender Students, a resource providing examples of policies and best practices of schools from across the country aimed at supporting transgender students.
California law is consistent with the Departments’ Dear Colleague Letter. For example, Section 220 of the California Education Code already prohibits discrimination based on gender identify against students in educational programs and activities. Moreover, Section 221.5(f) of the California Education, which took effect on January 1, 2014, specifically provides:
A pupil shall be permitted to participate in sex-segregated school programs and activities, including athletic teams competitions, and use facilities consistent with his or her gender identify, irrespective of the gender listed on the pupil’s records.
More information about the rights of transgender students under California law can be found in AALRR’s EdLawConnect Blog, New Transgender Student Rights Law to Take Effect on January 1, 2014.