Last Friday, the U.S. Departments of Education and Justice released joint guidance on their interpretation of the rights of and protections for transgender students under Title IX.

The guidance document, which comes in the form of a Dear Colleague Letter, does not add requirements to existing law, but adds another voice to an ongoing conversation about whether Title IX’s prohibition against discrimination “on the basis of sex” extends to cover discrimination based on a student’s gender identity or transgender status.

The document is clear on the stance the Departments will take in evaluating whether districts are complying with their obligations to transgender students under Title IX – a school must not treat a transgender student differently from the way it treats other students of the same gender identity. This is not inconsistent with the position the Departments have taken in the Statement of Interests and amicus briefs they have filed in recent court cases involving transgender students.

The guidance provides information for schools pertaining to the Departments’ interpretation regarding schools’ obligations to:

  • Respond promptly and effectively to sex-based harassment of all students, including harassment based on a student’s actual or perceived gender identity, transgender status, or gender transition;
  • Treat students consistent with their gender identity even if their school records or identification documents indicate a different sex;
  • Allow students to participate in sex-segregated activities and access sex-segregated facilities consistent with their gender identity; and
  • Protect students’ privacy related to their transgender status under Title IX and the Family Educational Rights and Privacy Act.

In addition to the Departments’ Dear Colleague Letter, the Department of Education’s Office of Elementary and Secondary Education also released Examples of Policies and Emerging Practices for Supporting Transgender Students, a compilation of policies and practices that schools across the country are using to support transgender students. The Department of Education has created a new resource page that includes these documents, as well as other resources for transgender and gender non-conforming students.

The Departments’ guidance expresses an interpretation of Title IX that is still unsettled law. The courts and state and federal legislators are also reviewing and opining about the intent of Title IX and the extent of its protections. As a result, districts are encouraged to work with their legal counsel to review the Departments’ guidance, as well as their own policies and procedures, to determine how best to ensure that all students in the district are in a safe, supported and secure learning environments.

Posted by Sara Clark on 5/18/2016