The Department of Education and Department of Justice issued a Dear Colleague Letter on Transgender Students (“DCL”) on Friday, May 13, 2016, providing what it terms “significant guidance” on the appropriate treatment of transgender students on campus. As noted in the letter, “this guidance does not add requirements to applicable law, but provides information and examples to inform recipients about how the Departments evaluate whether covered entities are complying with their legal obligations.” Thus, despite stating that the letter is merely informative, in reality the Departments appear to be telling readers that if they do not follow the guidance, they may be found in violation of the law. Putting aside the constitutional concerns this type of directive raises, institutions will want to carefully review the letter and understand what they are dealing with when it comes to the Departments’ perspective on transgender issues.
Although the DCL does not address every issue colleges and universities are facing today with respect to transgender students, it hits on many of the areas that most often lead to confusion. As an initial matter, the DCL clearly states upfront that Title IX’s prohibition of discrimination based on “sex” encompasses “gender identity.” Under Title IX, a student’s “sex” is the same as their expressed “gender identity,” and not their sex at birth or what is reflected on their birth certificate or other identifying documentation. Institutions should treat a student in accordance with their preferred or expressed gender identity as soon as the student notifies the institution of that preference. According to the Departments, there is no medical diagnosis or treatment requirement that is a prerequisite for treating the student according to their gender identity, and an institution may not require a student expressing a particular gender identity to provide documentation or “proof” of the change, for example a drivers’ license with the new “female” name.
A few areas of interest the DCL addresses are as follows:
- ID documents, names, pronouns—regardless of what these documents reflect, institutions must use the gender reference, name, and pronoun the student wants used.
- Sex-segregated activities and facilities—institutions must allow transgender students to use the facility that corresponds with their chosen gender identity.
- Restrooms and locker rooms—institutions may make individual-user options available, but cannot not force the transgender student to use them. The student must be allowed to use the restroom or locker room that corresponds with their expressed gender identity.
- Athletics—an institution may segregate athletic activities by sex when based on competitive skill or if it is a contact sport. An institution may not, however, rely on overly broad generalizations or stereotypes about the differences between, for example, a transgender female and a born female.
- Social fraternities and sororities—The DCL simply provides that Title IX does not apply to these organizations. Institutions should not, however, take this as a green light to disregard transgender issues in social houses entirely, as Title IX issues can sometimes spill over into off-campus settings.
- Housing and overnight accommodations—Title IX allows separate housing based on sex, but an institution must allow a transgender student access to housing consistent with their expressed identity. Institutions cannot force a transgender student to live in single-occupancy accommodations.
- Other—unless expressly authorized by Title IX, an institution may not segregate or otherwise distinguish students on the basis of sex, including gender identity, in any school activities or the application of any school rule. In addition, an institution may not discipline or exclude a transgender student from participation in such activities for appearing or behaving in a manner that is consistent with their gender identity or that does not conform to stereotypes.
- Privacy and Education Records (FERPA)
- PII—Even where a student has disclosed their transgender status to some members of the community, a school may not rely on FERPA’s legitimate educational interest exception to disclose the student’s status to other personnel who do not have a legitimate educational interest in the information. The student’s transgender status may be considered PII and such a disclosure may violate FERPA.
- Disclosure of directory information—institutions may not designate sex, including transgender status, as “directory information” because doing so could be harmful or an invasion of privacy.
- Amendment or correction of educational records—students may request corrections to educational records to reflect gender identity. Updating the educational records of such students may help protect privacy.
These are only a few of the issues surrounding treatment of transgender students addressed in Friday’s DCL. The DCL also points institutions to numerous resolution agreements on transgender issues and provides sample transgender policies (from the secondary level but applicable to all institutions) and encourages institutions to look to those examples for practical ways to comply. Whether your institution chooses to risk viewing the letter as non-binding and therefore not mandatory is an individual decision, but reviewing these resolution agreements and sample policies should give your institution a good road map for understanding what the Department will view as best efforts at compliance when it comes to the treatment of transgender students.