Transgender Protection for Students

Transgender Protection for Students
June 20, 2016

Joining with the U.S. Department of Justice, the U.S. Department of Education, Office for Civil Rights (“OCR”), issued a “Dear Colleague Letter” (“DCL”) on May 13, 2016, addressing the rights of transgender students at colleges and universities.  Though perhaps most widely known for addressing a transgender student’s right to use a restroom facility that corresponds with that student’s gender identity, there are other key takeaways from this DCL.

1. A student’s “gender identity” is protected under Title IX.
The DCL eliminates any doubt: a student’s gender identity is protected under Title IX.  “Gender identity,” as defined by the DCL, is “an individual’s internal sense of gender.”  The DCL makes clear that a student’s gender identity is protected under Title IX in the same way that a student’s sex (or “sex assigned at birth”) is protected.  Colleges and universities, therefore, may not treat a transgender student differently than how it treats other students of the same gender identity.  This means that where a college or university has segregated resources or facilities by sex or gender (e.g. residence hall), a transgender student may access those resources or facilities based on their gender identity.  Colleges and universities that do not treat transgender students according to their gender identity risk creating a hostile environment for those students that could ripen into a Title IX claim.

2. Gender identity does not require any medical diagnosis, treatment, or documentation.
The directive to treat students consistent with their gender identities is unconditional.  The DCL makes clear that a college or university cannot require a student to undergo any sort of treatment, receive any particular diagnosis, or otherwise provide medical documentation related to their gender identity before treating the student consistent with their gender identity.  The exemplar policies issued with the DCL confirm that colleges and universities must respect a student’s gender identity as expressed by the student.  

3. A student’s preferred name and pronoun must be respected, as both reflect gender identity.
Colleges and universities must refer to transgender students consistent with the students’ preferred names and genders. Students do not need to have their names legally changed (via court order, for example) before a college or university is required to refer to them by their preferred names and pronouns.  However, consistent with the Family Educational Rights and Privacy Act (“FERPA”), students who do change their legal names are able to seek to modify their education records to reflect their changed legal names.

4. A student’s gender identity should be treated as confidential.
There are two important privacy implications raised in the DCL.  

First, colleges and universities violate Title IX “by failing to take reasonable steps to protect students’ privacy related to their transgender status, including their birth name or sex assigned at birth.”1 Although the DCL does not explain what is “reasonable” in the context of protecting a student’s transgender status, there is guidance on what should happen when transgender students disclose their “transgender status” to some members of the campus:

Even when a student has disclosed the student’s transgender status to some members of the school community, schools may not rely on this FERPA exception [which permits disclosure to school officials] to disclose [personally identifiable information] from education records to other school personnel who do not have a legitimate educational interest in the information.

This prohibition is telling.  The practical takeaway here is that a student’s transgender status should be disclosed only to those within a college or university on a need-to-know basis (it should never be disclosed beyond the college or university without the student’s express permission).  Breaching a student’s privacy with respect to one’s transgender status could lead to a private right of action under Title IX brought by the aggrieved student.  

Second, and relatedly, a college or university’s “directory information,” as defined by FERPA regulations, cannot include a student’s sex, including transgender status, “because doing so could be harmful or an invasion of privacy.”  The harm OCR appears to prevent in this context is a college or university inadvertently “outing” a transgender student who has not fully disclosed his or her transgender status or sex assigned at birth.

To be clear, the DCL does not alter the fact that FERPA does not create a private right of action.  But the DCL does suggest that a college or university could be held liable under Title IX—even if the college or university is otherwise in compliance with FERPA.

5. Participation of transgender students on single-sex sports teams remains unsettled.
Perhaps the most public way a college or university will segregate sexes is through their athletics teams.  Title IX regulations generally permit this approach to athletics.  The DCL does not clarify how colleges and universities should incorporate transgender students within their athletics programs.  In fact, the DCL devotes only one paragraph to the topic.  

But the DCL reaffirms that a college or university “may operate or sponsor sex-segregated athletics teams when selection for such teams is based upon competitive skill or when the activity involved is a contact sport.”  Colleges and universities cannot implement rules based on “overly broad generalizations or stereotypes about the differences between transgender students and other students of the same sex (i.e. the same gender identity) or others’ discomfort with transgender students.”  It is appropriate, however, to impose “age-appropriate, tailored requirements based on sound, current, and research-based medical knowledge about the impact of the students’ participation on the competitive fairness or physical safety of the sport.”  The DCL does not reconcile these statements or otherwise assist colleges and universities in applying them.  

Instead, the DCL cites to the Policy on Transgender Student-Athlete Participation by the National Collegiate Athletic Association (“NCAA”).  This policy addresses students who are transitioning their gender through medical treatment or who otherwise have a gender identity different from their sex assigned at birth.  Though the DCL does not explicitly approve the NCAA’s policy under Title IX, it also does not reject the NCAA’s approach.  At least for now, and while OCR continues to grapple with this issue, colleges and universities that are NCAA members should follow and implement the NCAA’s policy.

*   *   *   *   *
Issues related to transgender students will continue to impact the Title IX landscape.  Though the DCL addresses some of these issues, like many dear colleague letters before it, the DCL leaves colleges and universities without answers to important questions.  May a student change gender identity more than once?  Are there ever any circumstances where a college or university is permitted to assess the sincerity of a student’s gender identity?  How do students who do not ascribe to the binary nature of gender identity impact this analysis?  And how must colleges and universities address all of this in the context of athletics, financial aid (e.g. gender-based scholarships), or as part of their overall Title IX compliance?  Although these questions remain unanswered, Saul Ewing attorneys can help institutions develop practical steps and solutions in this largely uncharted territory.   

Here are two final takeaways. First, though this DCL focuses on the rights of transgender students, it is important for colleges and universities to balance those rights with the rights of other students.  This is especially true in the context of student discipline.  Unfortunately, OCR has not provided any specific guidance on this point.  But based on prior guidance, colleges and universities should take care to comply with their own written policies, which should afford all students a fair process, regardless of their sex or gender. 

Second, institutions should be aware of the state-level challenges led by Texas and North Carolina, which confront both the substance of the DCL and OCR’s unilateral ability to issue dear colleague letters.  Suffice it to say, the latter challenge could not only impact this DCL, but also could impact the effects of OCR’s past guidance. Members of the firm’s Higher Education Practice are tracking those state-level challenges and their broader nationwide implications. 

This article appears in the Summer 2016 edition of Saul Ewing’s Higher Education Highlights newsletter. Click here to see the complete newsletter.

 


1. In certain circumstances, where a student’s transgender status, birth name, or sex assigned at birth is disclosed from a student’s education records, that disclosure could potentially violate both Title IX and FERPA.

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