[co-author: Karlie Dunsky]

Amidst a recently intensified national debate regarding support for transgender students in schools, the U.S. Department of Justice (DOJ) and Department of Education (DOE) today issued new guidance setting out guidelines for how they will enforce Title IX of the Education Amendments of 1972’s prohibition against denying equal educational opportunities based on student’s sex. The guidance confirms that the DOJ and DOE interpret a student’s “sex” based on gender identity, or that person’s subjective or internal gender, as opposed to sex assigned at birth.

The guidance is effective immediately and applies to all schools receiving federal funding, including school districts, colleges, and universities.  To comply with Title IX under the guidance, a school must not treat transgender students differently from cisgender students (students whose gender identity is the same as their birth sex) and must provide transgender students equal access to facilities, “even in circumstances in which other students, parents, or community members raise objections or concerns.” The guidance states that concerns about privacy and discrimination are not inherently in conflict.

The guidance advises on the following various aspects of supporting transgender students:

• Preventing sex-based harassment of students based on gender identity;
• Privacy protections for information about a student’s gender identity in the student’s school records;
• Flexibility to change gender-identity information for students who transition genders;
• Use of pronouns and names in schools;
• Responding to requests for accommodations to address needs related to a student’s gender identity transition; and
• Facility access for transgender students.

While acknowledging that schools may provide sex-segregated facilities, groups, and classes in certain circumstances, the guidance clarifies that transgender students must have access to these “consistent with their gender identity.” For example, a school may not institute a policy that disallows transgender students from using the facilities corresponding to their gender identities, including sex-segregated restrooms and locker rooms. The guidance states that schools may offer individual-user options to all students who voluntarily seek additional privacy but may not require any students to use them. Similar instruction is articulated for single-sex classes and sex-segregated housing or overnight accommodations.

The guidance was issued alongside more specific examples of solutions in a document titled “Examples of Policies and Emerging Practices for Supporting Transgender Students” (available here), which provides examples of Title IX-compliant policies that U.S. school districts, state education agencies and high school athletics associations have adopted. The DOJ and DOE encourage schools and organizations, when adopting policies and resolving issues, to consider these examples and the DOE’s Office of Civil Rights posted fact-specific resolution agreements (available at www.ed.gov/ocr/lgbt.html).

To read the full guidance letter, click here.