When the 9th Circuit Court of Appeals issued an opinion several weeks ago upholding a public school district’s policy allowing transgender students to use facilities that match their gender identity, it was just the latest salvo in an increasingly complex legal landscape surrounding Title IX’s applicability to transgender students. The February 12 ruling in Parents for Privacy v. Barr concluded that such a policy did not violate Title IX because it was applied equally to all students and did not discriminate based on sex.

This decision is the most recent federal court decision on the subject – but such decisions have not always been consistent. Combined with the conflicting guidance issued by the Department of Education Office for Civil Rights (OCR), schools and universities may be left confused about Title IX obligations. This article offers a nine-step best practices guide to help you address issues related to gender identity at your institution.

Where Does The Current Administration Stand?

The current federal administration laid down a marker on this subject in February 2017, when the OCR and the Department of Justice Civil Rights Division released a Dear Colleague Letter withdrawing statements of policy and guidance made in an Obama-era Dear Colleague Letter. That Obama-era guidance in 2016 had clearly instructed that “a school must not treat a transgender student differently from the way it treats other students with the same gender identity” and must do so without “requiring students to produce … identification documents in order to treat them consistent with their gender identity.”

Focused on the use of sex-segregated facilities, particularly restrooms and locker rooms, the February 2017 letter stated that the 2016 letter should be revoked because such decisions should be made at the state and local level. Notwithstanding this shift in policy, the February 2017 letter reaffirmed that “all schools must ensure that all students, including LGBT students, are able to learn and thrive in a safe environment.”

Notably, many of the foundational elements of the 2016 letter – including that Title IX extends to discrimination and harassment on the basis of gender identity – were espoused in other OCR guidance issued over the previous several years, which were unaffected by the February 2017 letter. In 2018, OCR further scaled back protections for transgender students by expressly indicating that separate facilities on the basis of sex is not a form of discrimination protected by Title IX.

In November 2018, the Department of Education (DOE) issued a notice of proposed rulemaking seeking to eliminate the requirement for schools claiming a religious exemption to submit a confirming letter. The amended regulation, which remains to be published, would still require institutions subject to an investigation to attest to their exemption as part of the complaint process. In January 2020, the DOE issued another proposed rule which would provide a non-exhaustive list of criteria that offers educational institutions different methods to demonstrate that they are eligible to claim a religious exemption.

Federal Courts Issue Conflicting Decisions

Federal courts have expressed conflicting views as to whether protection for transgender students exists under Title IX, though more recent decisions suggest that the trend is toward providing such protection. Perhaps the most high-profile case in this arena to date, the G.G. ex rel. Grimm v. Gloucester County School Board case, highlights the analyses that federal courts have performed in the context of such Title IX actions. You may be surprised to learn that the litigation in this case is still ongoing.

The case began in 2015 when a transgender student brought a Title IX action alleging his high school denied him access to the bathroom that corresponded to his gender identity. The school’s policy restricted bathroom use based on students’ “biological genders,” and provided “alternative appropriate facilities” for students with “gender identity issues.”

After a lower court dismissed the student’s claim based largely on a DOE regulation which states that schools “may provide separate toilet, locker room, and shower facilities on the basis of sex,” the 4th Circuit Court of Appeals ruled in the student’s favor and revived his claim. It found that the regulation was ambiguous because “it is silent as to how a school should determine whether a transgender individual is a male or female for the purposes of sex-segregated restrooms.”

But before the U.S. Supreme Court could issue what would have been the first landmark transgender case, the OCR changed its guidance as noted above. The Supreme Court decided to return the case back to the lower court for a ruling under the new 2017 OCR guidance.

In August 2019, the district court ruled in favor of the student, rejecting the school’s argument that “sex” under Title IX is a binary term encompassing the physiological distinctions between men and women. It concluded that the school’s bathroom policy discriminates against transgender students on the basis of their gender nonconformity. The court further held that the board’s refusal to update the student’s records to reflect his male gender consistent with his amended birth certificate was discriminatory. An appeal is now pending in the 4th Circuit.

A Pennsylvania district court took a different view. In the 2016 case of Johnston v. University of Pittsburgh, a school expelled a transgender male student after he used the men’s restrooms and locker rooms. The student brought a Title IX action, among other claims, alleging that he had been discriminated and retaliated against on the basis of sex. The court dismissed the case, however, concluding that while the student identifies as male, his birth sex is female, a fact that was fatal to his sex discrimination claim. The court held that requiring individuals to use bathrooms consistent with birth sex is not discriminatory conduct. The case was settled in 2016 while on appeal to the 3rd Circuit.

While these two cases demonstrate the disparity of opinion among federal courts on the viability of a Title IX claim based on a student’s transgender identity, federal courts are trending towards following Gloucester County School Board in recent years – as the recent 9th Circuit case discussed in the introduction demonstrates.

9-Step Best Practices Plan

While the legal landscape regarding gender identity and transgender students and is far from settled, you can glean certain best practices from the sum of the OCR guidance and federal jurisprudence to date. Here is a nine-step plan for your school to follow to minimize exposure for Title IX violations.

1. First, Title IX obligations apply only to K-12 schools and institutions of higher education that receive federal financial assistance. If your school or institution receives federal dollars, you should carefully consider recent federal law interpretations in your jurisdiction when formulating an approach to gender identity. Regardless of whether Title IX is applicable to your school or institution, you may still be subject to similar state or local laws. Similarly, you should be aware of instances in which specific state and local criminal and civil laws might conflict with approaches that permit or require various protections based on gender identity.
2. To the extent that many decisions (e.g., housing, restroom access, athletics, and transcripts) flow from demographic information contained within a student’s record, such as name and gender, you should consider developing policies addressing preferred name and preferred gender/pronouns.
3. You should include gender identity and expression in your Title IX, nondiscrimination, and conduct policies. Such policies should expressly prohibit transphobic conduct. You should also review all documents, forms, records and online information to ensure that gender-inclusive language and options are utilized and that the approach is consistent across school departments.
4. With regard to restroom and locker room access, you should consider a policy that would permit a transgender student to use facilities consistent with the student's gender identity, as opposed to a policy requiring transgender students to use individual-user facilities if other students are not required to do so. At a minimum, you may wish to consider making a sufficient number of single-user options available to all students who voluntarily seek additional privacy. Such restrooms should employ clear gender-neutral labeling and be clearly designated on campus maps.
5. With regard to campus housing, it is advisable to designate a portion of campus housing as “gender neutral” where roommates are assigned without regard to gender. To the extent you maintain a portion of your housing as gender-specific, you should consider developing processes for ensuring that students are housed according to their stated gender identity. It is also advisable to offer alternative housing options for transgender and non-conforming students who prefer not to have a roommate for safety or other reasons (e.g., single-occupancy rooms). You should take steps to protect students’ privacy rights, for example, by including a confidentiality statement on the housing application to ensure that shared information remains confidential. Conversely, if a student wishes to disclose their gender identity or status as a transgender student, it may be helpful to have a policy honoring such requests to mitigate any concerns that arise, such as informing a potential roommate to ensure the placement is a comfortable fit.
6. You should consider all facets of the educational experience, both academic and extracurricular, such as the use of pronouns in the classroom, field trips and study abroad considerations, employment-based experiential settings, athletics and intramural sports, Greek letter organizations (which receive a Title IX exemption), and school clubs.
7. It is critical to provide training for appropriate school officials on issues relating to gender identity to ensure competency and a sufficient understanding of their roles and responsibilities. Similarly, regular outreach and awareness initiatives are important to enhance acceptance of gender diversity within the school community.
8. Counseling and health services staff should be trained on trans-inclusive practices, and health insurance coverage should be reviewed and negotiated to be inclusive of trans students.
9. Finally, you should assemble a committee of relevant stakeholders to discuss ongoing efforts and to support your school in adopting policies and practices with regard to gender identity.

Conclusion

Notwithstanding the ongoing uncertainty regarding Title IX protections for transgender students, you should take affirmative steps to assess all areas of your academic and extracurricular offerings and implement policies, procedures, and practices to ensure compliance according to the current status of federal law in your jurisdiction, as well as any applicable state or local laws. You should continue to pay close attention to updates from OCR – as well as changes in federal, state, and local law – as such developments may necessitate a reevaluation of your policies and procedures with regard to transgender students.