The DCL, dated May 13, 2016, states that DOJ and DOE “treat a student’s gender identity as the student’s sex for purposes of Title IX and its implementing regulations.” The guidance covers a range of issues, including participation in educational programs and activities, access to facilities, and recordkeeping and privacy.
The DCL does not set out any new legal requirements. Rather, the Departments’ interpretation is consistent with courts’ and other agencies’ interpretations of federal laws prohibiting sex discrimination. However, in light of recent high-profile state legislation affecting gender identity and expression, the DCL guidance is a strong statement on the enforcement positions that these agencies will take in gender identity discrimination cases.
This also may provide insights for employers on how the DOJ might interpret transgender issues under employment discrimination laws, as that department has stated in the past that it considers Title VII to apply to gender identity and expression.
Courts generally give weight to the interpretation that enforcement agencies apply to laws they enforce, and failure to comply with Title IX can lead to sanctions up to and including loss of access to federal funding. However, the May 13 DCL is guidance, not binding regulation, and the positions of DOJ and DOE may well be challenged in court. Indeed, opposition to individual school district policies on transgender student use of bathrooms or locker rooms already has resulted in litigation. (See our articles, Oxford, Alabama, City Council Repeals Bathroom Ordinance Targeting Transgender Individuals and School District Faces Government Sanctions under Title IX for Denying Transgender Female Student Access to Locker Rooms.)
In addition to defining key terms, such as “gender identity” and “transgender,” the letter expresses several key DOJ and DOE positions, including the following:
Transgender students are entitled to protection under Title IX, regardless of whether they have undergone medical procedures, and regardless of whether official documents, such as birth certificates and government-issued identity cards, reflect the student’s individual gender identity or “sex assigned at birth.”
Objections from other students or parents do not serve as a basis for denying a transgender student equal access to academic programs, educational activities, and institutional facilities.
Educational institutions must provide safe and non-discriminatory environments to all students based on gender, including gender identity. Institutions must react promptly and effectively to harassment or discrimination directed toward transgender students.
Schools, colleges, and universities should produce school documents and use names and pronouns that correspond to the preferences of their transgender students, regardless of what legal documents might say.
The DCL also provides guidance on specific situations that arise frequently in the educational setting, such as:
Transgender students should be permitted to use restrooms, locker rooms, and residence halls that correspond to their gender identity, and they should not be required to use single-sex facilities.
Schools may use “age-appropriate, tailored requirements based on sound, current, and research-based medical knowledge” to determine student eligibility for sports teams. Colleges and universities should note that the National Collegiate Athletic Association (NCAA) has issued guidance on transgender student-athlete participation in intercollegiate sports. (See The NCAA And Transgender Student-Athlete Participation.)
If certain courses are restricted to one sex or the other, then transgender students should be allowed to attend based on their gender identity.
Single-sex schools and single-sex fraternities and sororities are not subject to Title IX in their admissions or selection processes, and, therefore, they may develop their own policies with regard to transgender students.
Finally, the DCL provides guidance on privacy and educational records for transgender students under the Family Educational Rights and Privacy Act (FERPA).
Schools, colleges, and universities should review and, as appropriate, update their the harassment and transgender policies in light of the DCL guidance, and implement training for school administrators, human resources, and faculty on how best to comply with transgender student rights.