“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”
