Obama Administration Issues Guidance Regarding Transgender Students

The U.S. Departments of Education and Justice have jointly issued guidance regarding civil rights protections of transgender students at the nation’s public elementary and secondary schools and Title IV-eligible institutions of higher education. Accompanying the guidance is a resource to help institutions set and implement policies and practices for supporting transgender students.

While the guidance is aimed primarily at elementary and secondary schools, its provisions apply to colleges and universities that participate in the federal student aid programs as well. The religious exemption from Title IX is applicable for those institutions with faith tenants that conflict with this guidance.

The guidance requires institutions which receive federal funds to comply with four broad categories in order to maintain federal funding eligibility:

1. Safe and Nondiscriminatory Environment

• Schools have a responsibility to provide a safe and nondiscriminatory environment for all students, including transgender students. If sex-based harassment takes place, a school must take prompt and effective steps to end the harassment, prevent its recurrence, and, as appropriate, remedy its effects. A school’s failure to treat students consistent with their gender identity may create or contribute to a hostile environment in violation of Title IX.

2. Identification Documents, Names, and Pronouns

• A school must treat students consistent with their gender identity even if their education records or identification documents indicate a different sex. Schools and contractors will use pronouns and names consistent with a transgender student’s gender identity.

3. Sex-Segregated Activities and Facilities

Restrooms and Locker Rooms

• A school may provide separate facilities on the basis of sex, but must allow transgender students access to such facilities consistent with their gender identity. A school may not require transgender students to use facilities inconsistent with their gender identity or to use individual-user facilities when other students are not required to do so. A school may, however, make individual-user options available to all students who voluntarily seek additional privacy.

Athletics

• A school is permitted to operate or sponsor sex-segregated athletics teams when selection for such teams is based upon competitive skill or when the activity involved is a contact sport. A school may not, however, adopt or adhere to requirements that rely on overly broad generalizations or stereotypes about the differences between transgender students and other students of the same sex (i.e., the same gender identity) or others’ discomfort with transgender students. Title IX does not prohibit age-appropriate, tailored requirements based on sound, current, and research-based medical knowledge about the impact of the students’ participation on the competitive fairness or physical safety of the sport.

Single-Sex Schools

• Title IX does not apply to the admissions policies of certain educational institutions, including private undergraduate colleges. Those schools are permitted under Title IX to set their own sex-based admissions policies. Nothing in Title IX prohibits a private undergraduate women’s college from admitting transgender women if it so chooses.

Social Fraternities and Sororities

• Title IX does not apply to the membership practices of social fraternities and sororities. Those organizations are permitted under Title IX to set their own policies regarding the sex, including gender identity, of their members. Nothing in Title IX prohibits a fraternity from admitting transgender men or a sorority from admitting transgender women if it so chooses.

Housing and Overnight Accommodations

• Title IX allows a school to provide separate housing on the basis of sex. But a school must allow transgender students to access housing consistent with their gender identity and may not require transgender students to stay in single-occupancy accommodations or to disclose personal information when not required of other students. Nothing in Title IX prohibits a school from honoring a student’s voluntary request for single occupancy accommodations if it so chooses.

Other Sex-Specific Activities and Rules

• Unless expressly authorized by Title IX or its implementing regulations, a school may not segregate or otherwise distinguish students on the basis of their sex, including gender identity, in any school activities or the application of any school rule. Likewise, a school may not discipline students or exclude them from participating in activities for appearing or behaving in a manner that is consistent with their gender identity or that does not conform to stereotypical notions of masculinity or femininity (e.g., in yearbook photographs, at school dances, or at graduation ceremonies).

4. Privacy and Education Records

• Protecting transgender students’ privacy is critical to ensuring they are treated consistent with their gender identity. The Departments may find a Title IX violation when a school limits students’ educational rights or opportunities by failing to take reasonable steps to protect students’ privacy related to their transgender status, including their birth name or sex assigned at birth. 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 and may also violate the Family Educational Rights and Privacy Act (FERPA). A school may maintain records with this information, but such records should be kept confidential.

Further information relating to FERPA protections can be found in the joint guidance.

Lawmakers on Capitol Hill have begun to issue statements on the guidance, including Rep. John Kline, chair of the House Education & the Workforce Committee who strongly disagrees with the Department wading into these waters.

For more information, please contact:
Tim Powers