Friday, May 13, 2016

Federal Government Issues Guidance for Schools, Educational Programs, re: Transgender Students

“When it’s time to change, you’ve got to rearrange
Who you are and what you're gonna be”

The Department of Justice and the Department of Education today issued a significant guidance document today to help schools comply with their obligations toward transgender students under Title IX of the Education Amendments of 1972 (“Title IX”) – which is a federal statute modeled after part of the Civil Rights Act of 1964 – and the federal regulations implementing that law.  This “dear colleague” letter does not subject schools to any new binding regulatory commands, but it clarifies how these two agencies interpret extant laws.  The Department of Education’s blog introduces the guidance, illustrating the importance of assuring schools respect the rights of all students including transgender students and explaining the departments’ action as responsive to requests from the education community.   Title IX prohibits sex discrimination in educational programs and activities receiving federal funds, as the vast majority of schools do.  Consistent with the trend in federal courts (much of which was, disgracefully and likely disingenuously, omitted from North Carolina’s complaint in the state’s lawsuit against the Justice Department for its actions in response to HB2), the guidance explains that the Departments of Justice and Education have interpreted Title IX’s ban on sex discrimination to include a prohibition on “discrimination based on a student’s gender identity, including discrimination based on a student’s transgender status.”    Under Title IX and its regulations, as the departments of the federal government charged with enforcing them have interpreted these laws, schools must not discriminate against transgender boys (who were identified as female at birth but whose gender identity is male) or transgender girls (who were identified as male at birth but whose gender identity is female).  Transgender boys are to be treated as the school treats boys generally; transgender girls are to be treated as the school treats girls generally.  Most prominently under discussion these days due to North Carolina’s anti-civil rights HB2, if a school provides separate spaces for students of different sexes, it must allow transgender students to use the space consistent with their gender identity.  Thus, transgender boys must be allowed to use boys’ restrooms, and transgender girls.  This requirement is how the departments had already been interpreting the relevant federal laws.   In addition, the guidance makes clear that schools must ensure a safe and nondiscriminatory environment for their students, including taking effective steps to preclude hostile environments created by “[h]arassment that targets a student based on gender identity, transgender status, or gender transition.”  The guidance suggests that school staff and contractors are to use student names and pronouns consistent with the student’s gender identity, regardless of what may be specified on formal identity documents such as birth certificates, which can be difficult or impossible to amend to reflect correctly a person’s gender identity.  The guidance also makes clear that this can be important to protecting the confidentiality of a student’s transgender status.   The guidance letter does what this kind of document is supposed to do: provides significant guidance to schools and educational programs across the country concerning their legal requirement not to discriminate on the basis of sex.  Unlike the Justice Department’s letter to North Carolina, which violated transgender students’ rights in state law, HB2, rushed through from introduction to adoption in a single day in an extraordinary special session of the legislature, today’s guidance document does not threaten any school with loss of federal funding.  It does, however, make clear what the relevant federal department understand the governing law to mean for schools.  It seems likely, then that schools that are seeking in good faith to provide equal educational opportunities to all their students will take the opportunity to change their policies, or adopt ones, to do what is legally required when it comes to their transgender students, who deserve the same chance to learn and to thrive as all others.
“A little bit of living, a little bit of growing all adds up to you”