Changing course on complaints involving transgender students, the U.S. Department of Education's Office for Civil Rights (OCR) recently issued new field instructions to its regional staff excluding discrimination claims based on gender identity. The June 6, 2017, memorandum, authored by OCR Acting Assistant Secretary for Civil Rights Candice Jackson, instructs OCR officials to continue addressing complaints of sex or gender discrimination, harassment and bullying "whether or not the individual is transgender," but to decline enforcement of discrimination complaints based on gender identity. The internal guidance, the second one released in only a matter of weeks, walks back the rescinded 2016 Obama Administration policy directive that transgender students should be included in federal sex discrimination protections under Title IX and allowed to use sex-segregated facilities that conform to their gender identity.

Harassment and Discrimination Scenarios

The field instructions describe five scenarios in which OCR may take jurisdiction over complaints involving transgender student harassment or discrimination:

  • failure of a school to promptly and equitably resolve a transgender student's complaint of sex discrimination
  • failure of a school to assess whether sexual or gender-based harassment of a transgender student created a hostile environment
  • failure of a school to take steps to address sexual or gender-based harassment that created a hostile environment
  • retaliation by a school against a transgender student after concerns of sexual or gender-based discrimination were raised
  • different treatment of a student based on sex stereotyping, defined as "different treatment based on a student's failure to conform to stereotyped notions of masculinity or femininity"

Gender-based harassment includes harassment based on "sex stereotyping," such as "refusing to use a transgender student's preferred name or pronouns when the school uses preferred names for gender-conforming students or when the refusal is motivated by animus toward people who do not conform to sex stereotypes." Notably, the instructions mention only one scenario in which OCR may dismiss a complaint based on transgender student discrimination: complaints of denial of restroom access based on gender identity. Although so-called "bathroom" complaints are not explicitly prohibited, the instructions indicate that OCR will not pursue such claims if based on gender identity alone.

Considerations and Takeaways

For discrimination claims based on gender identity, transgender students should look to state and local laws for further protection. Many states, such as Massachusetts, expressly prohibit discrimination based on gender identity, and many school districts provide increased protection, including access to restrooms and locker rooms based on gender identity.

At its core, Title IX prohibits discrimination based on sex in educational institutions that receive federal funding. This new guidance signifies that OCR will not treat gender identity any differently than "sex" when dealing with complaints of sex-based harassment, discrimination or bullying. When it comes to controversial bathroom complaints, OCR appears to be staying out of it.