On May 13, 2016, the U.S. Department of Education, Office for Civil Rights and the U.S. Department of Justice (“the Departments”) issued a Dear Colleague Letter (“DCL” or “guidance”) regarding transgender students (meaning students who identify as a gender that is different from the sex on their birth certificate). The DCL summarizes a school’s obligations under Title IX of the Education Amendments of 1972 (Title IX) to transgender students and explains how the Departments evaluate a school’s compliance with the law.
Immediately, the guidance created significant controversy at the state level, with several pending lawsuits by state governments and others attacking its force and use. Recent communications from Congress to the Departments similarly question the Departments’ authority and the content of the DCL. The key point for all schools, however, is that the Departments are utilizing the guidance to evaluate a school’s Title IX compliance with respect to transgender students and will continue to do so unless and until the courts, Congress or the next administration act to adjust or clarify its content or use.
The DCL addresses specific areas of concern, including the use of pronouns and school facilities. Once a school is notified, the school administration must use pronouns and names consistent with the student’s gender identity. Additionally, transgender students cannot be prohibited from using sex-segregated school facilities (restrooms, housing, locker rooms, etc.) that are consistent with the student’s gender identity. However, a school may make voluntary, individual-user options available.
In addition to discussing the rights afforded to transgender students under Title IX, a large portion of the DCL is dedicated to protecting the privacy and educational records of transgender students. The Departments’ view is that protecting a transgender student’s privacy is critical to ensuring that the student is treated consistent with the student’s gender identity. Consequently, schools must take reasonable steps to protect the student’s birth name or sex at birth from release without consent. Failure to take reasonable steps may itself be a violation of Title IX. Schools may maintain records that include information about gender identity, but must keep those records confidential.
The DCL also addresses the Family Educational Rights and Privacy Act (“FERPA”), which governs educational record privacy, in three main areas: (1) disclosure of personally identifiable information from education records; (2) disclosure of directory information; and (3) amendment or correction of education records. The DCL states that if a student has disclosed his or her transgender status to some school personnel, the information cannot be disclosed to other personnel unless they have a legitimate educational interest. The DCL clarifies that a student’s sex, including transgender status, cannot be considered directory information (releasable without prior consent), as the gender identity information may be harmful to the student and/or an invasion of privacy. A transgender student may request to correct his or her education records to reflect his or her gender identity. The Departments explain that if a student or parent makes a complaint regarding the way the school handled this type of correction request, the complaint must be resolved through the school’s Title IX grievance procedures.
The controversy surrounding this guidance should not distract schools from the fact that the content of the DCL illustrates how the Departments currently evaluate Title IX compliance with respect to transgender students.