In the ever-changing federal landscape under the Trump administration, the Office for Civil Rights released "Instructions to the Field re Complaints Involving Transgender Students" ("OCR Instructions") on June 6, 2017.
The OCR Instructions acknowledge that the Trump Dear College Letter ("Trump DCL"), dated February 22, 2017 withdrew Title IX protections granted to transgender individuals to use the facilities and participate in the program consistent with their gender identity. However, the OCR Instructions also confirm that OCR will continue to protect transgender individuals against other types of sex discrimination, including harassment, bullying and other forms of unequal treatment. Specifically, the OCR Instructions confirm Title IX requires education institutions to: 1) promptly and equitability resolve complaints of sex discrimination by a transgender individuals that are not based on program or facility access, 2) assess whether sexual or gender-based harassment of a transgender student creates a hostile environment, 3) take active steps to address sexual or gender-based discrimination that creates a hostile environment, 4) address retaliation after concerns about transgender discrimination are brought to the institution, and 5) remedy different treatment based on sex stereotyping, such as actions that punish or single out a student for failure to confirm to stereotyped notions of masculinity and femininity.
While the OCR Instructions confirm that OCR will not investigate claims of discrimination from transgender individuals based on denial of access to facilities or programs, the OCR Instructions indicate OCR will review all complaints to determine if they include any discrimination that should be investigated by OCR. For example, if a complaint alleges a transgender student was denied access to bathrooms and was also subject to harassment, OCR may investigate the harassment while notifying the complainant that facility access is beyond the scope of OCR. The OCR Instructions also guide OCR staff to help complainants understand the information that OCR requires to proceed with an investigation. So, if a complaint does not directly establish discrimination that could be investigated by OCR, OCR staff may contact the complainant to explain what information is needed to justify an OCR investigation.
Finally, the OCR Instructions provide sample language that OCR staff can use when dismissing a complaint if it is beyond OCR’s scope. This language includes a provision indicating that some states and school districts have adopted policies or laws that provide further protection to transgender individuals. So, OCR’s dismissals may inform complainants that they can pursue remedies based on State laws. In California, Education Code 221.5(f) requires schools to allow access to facilities and programs based on gender identity. Thus, even if a complaint is dismissed by OCR, it may inform a student that he/she can seek a remedy under California law.
Some have suggested that the Trump DCL, along with comments made by those in the Trump Administration, indicate that the previous guidelines provided by OCR with respect to transgender discrimination are no longer valid or important. The OCR Instructions confirm that Trump DCL does not end all OCR investigations of discrimination against transgender students. Instead, OCR is only precluded from investigating complaints based solely on denial of access to facilities or programs. Thus, education institutions should continue to comply with OCR’s policies and guidance regarding transgender discrimination in all other aspects, including harassment, bullying, and stereotyping. Further, the Trump DCL, as well as the OCR Instructions, confirm that state laws that require facility and program access based on gender identity, such as Education Code section 221.5(f), are still valid. Therefore, California education institutions must continue to protect against transgender discrimination in all its forms, which includes granting access to facilities and programs based on California law and eliminating all other forms of discrimination based on Title IX and California law.