To: Clients and Friends of the Firm:
On May 13, 2016, Catherine E. Lhamon, Assistant Secretary for Civil Rights, U.S. Department of Education and Vanita Gupta, Principal Deputy Assistant Attorney General for Civil Rights, U.S. Department of Justice, issued a “Dear Colleague” Letter explaining what civil rights protections apply to transgender students and how these two federal agencies will evaluate a school’s compliance with its obligations under Title IX of the Education Amendments of 1972 (“Title IX”) with respect to transgender students. In short, a school must not treat a transgender student differently from the way it treats other students of the same gender identity.
Title IX prohibits sex discrimination in education programs and activities operated by recipients of federal financial assistance. The “Dear Colleague” Letter clarifies that this prohibition encompasses discrimination based on a student’s gender identity, including discrimination based on a student’s transgender status. Schools have a responsibility to provide a safe and nondiscriminatory environment for all students, including transgender students. Schools must generally treat students consistent with their gender identity (with some limited exceptions, for example, if objective medical information indicates that a transgender student’s participation in a certain sport would be unsafe for the student) even if their education records or identification documents indicate that their gender identity is different from the biological sex that they were assigned at birth.
The guidance also clarifies how schools must treat transgender students when it comes to sex-segregated activities and facilities, including: restrooms and locker rooms, athletics, single-sex classes, single-sex schools, social fraternities and sororities, housing and overnight accommodations, and other sex-specific activities and rules.
Finally, the “Dear Colleague” Letter contains guidance with respect to how schools must protect transgender students’ privacy under Title IX and the Family Educational Rights and Privacy Act (“FERPA”). Nonconsensual disclosure of personally identifiable information such as a student’s birth name or sex assigned at birth could be harmful to or invade the privacy of transgender students. The guidance also describes how schools must respond to requests to correct a student’s education records to make them consistent with the student’s gender identity.
Institutions of higher education should study the “Dear Colleague” Letter, inventory the institutional policies, practices, and facilities that will be impacted by it, and make necessary modifications.