On June 6, 2017, Candice Jackson, Acting Assistant Secretary for Civil Rights for the U.S. Department of Education, sent the Office for Civil Rights (OCR) Regional Directors a memorandum outlining how to evaluate and investigate complaints involving students who identify as transgender. Under the Obama Administration, the Department of Education and Department of Justice issued a joint Dear Colleague Letter which provided specific information regarding Title IX recipients’ obligations and examples of how transgender students’ complaints of sex discrimination should be evaluated. On February 22, 2017, the Department of Education withdrew the 2016 Dear Colleague Letter, and now Jackson’s memorandum serves as guidance.

Background

This memorandum, unlike the 2016 Dear Colleague Letter, does not provide specific information or examples to guide OCR offices in their evaluation of complaints from transgender students. Rather, the memorandum focuses on the circumstances under which OCR offices should assert jurisdiction over a complaint and discusses when OCR investigators should proceed with an investigation.

The following are types of allegations over which the Acting Assisting Secretary indicates the OCR has continuing jurisdiction:

  • Failure to resolve promptly and equitably a transgender student’s complaint of sex discrimination;
  • Failure to assess whether sexual harassment or gender-based harassment of a transgender student has created a hostile environment;
  • Failure to take steps reasonably calculated to address harassment that creates a hostile environment;
  • Retaliation against a transgender student who has raised concerns about possible sex discrimination; and
  • Different treatment based on sex stereotyping.

Notably absent from this memorandum is whether the OCR can assert jurisdiction over complaints involving the use of “intimate” facilities, such as bathrooms and locker rooms, which the 2016 Dear Colleague Letter addressed in detail and federal courts are currently evaluating in depth.

With respect to reviewing complaints from transgender students, the memorandum instructs OCR offices to rely on federal court decisions interpreting Title IX and its implementing regulations. The memorandum provides a link to examples of state and local policies and practices that may provide protection to transgender students. The memorandum also includes a sample dismissal letter for OCR field offices to use when dismissing allegations for lack of jurisdiction.

What this Means for You

The memorandum emphasizes the importance of federal court decisions interpreting Title IX and its implementing regulations when evaluating transgender issues, but provides little substantive guidance from the new administration. Therefore, it is more important than ever to keep abreast of how the courts in your jurisdiction are interpreting Title IX with respect to transgender individuals.

Reading this memorandum in conjunction with the recent OCR memorandum on internal complaint investigation guidelines, one may also predict that school districts may see OCR complaints related to transgender students:

  1. processed somewhat more quickly;
  2. require less extensive document production related to past complaints; and
  3. contain less extensive obligations as part of resolution agreements.

Please follow our blog for updates on court decisions and OCR investigations in this rapidly evolving area of the law.