Interpretation of Federal Laws
Title IX prohibits sexual harassment and discrimination based on gender or sex stereotypes in every jurisdiction. While Title IX does not specifically use the terms “transgender” or “gender identity or expression,” courts have held that harassment and other discrimination against transgender and gender nonconforming people constitutes sex discrimination. This position has also been supported by the U.S. Department of Education. These rights were clarified in the October 26, 2010, “Dear Colleague Letter” and the April 29, 2014, guidance issued by the U.S. Department of Education, Office for Civil Rights, described in the “Recent Developments and Resources” section at the end of this document.
On February 22, 2017, the U.S. Department of Justice and the U.S. Department of Education issued a joint Dear Colleague Letter withdrawing the statements of policy and guidance reflected in: The May 13, 2016 Dear Colleague Letter on Transgender Students that was issued jointly by the U.S. Department of Justice and the Oﬀice for Civil Rights The January 7, 2015 letter to Emily Prince from James A. Ferg-Cardima, Acting Deputy Assistant Secretary for Policy at the Oﬀice for Civil Rights The February 22, 2017 Dear Colleague Letter provides a brief explanation of recent Title IX interpretation for transgender students and references litigation surrounding sex-segregated bathroom and locker room usage. The letter cites the need to further consider pending legal issues and to provide “due regard” for the role of states and local school districts. The Colorado Department of Education currently recommends that local school districts consult with legal counsel on local policies regarding restroom and locker room facilities.
Although previous federal guidance regarding restroom and locker room facilities has been rescinded, the February 22, 2017 Dear Colleague Letter emphasizes that withdrawal of previous guidance does not alleviate schools of their responsibility to “ensure that all students, including LGBT students, are able to learn and thrive in a safe environment” (page 2). In reference to the February 22, 2017 Dear Colleague Letter, U.S. Secretary of Education, Betsy De Vos, issued a statement emphasizing the responsibility of schools to protect every student and to provide all students with safe learning environments “free of discrimination, bullying and harassment.”
In addition, the October 26, 2010 Dear Colleague Letter issued by the Oﬀice for Civil Rights, states that Title IX protects all students, including transgender students, from sex discrimination prohibited under Title IX and provides examples of types of gender-based harassment that would be considered sex discrimination under Title IX.
Title IX of the Education Amendments Act of 1972 which prohibits sex-based discrimination and harassment, under any education program or activity receiving federal financial assistance. This includes discrimination based on exhibiting what is perceived as a stereotypical characteristic for an individual’s sex or failure to conform to stereotypical notions of masculinity and femininity. • Title IV of the Civil Rights Act of 1964 which prohibits sex-based discrimination and harassment in public schools and colleges. This includes discrimination based on a lack of conformity with traditional gender stereotypes.
Under Title IX and Title IV, all students, including transgender students and students who do not conform to sex stereotypes, are protected from sex-based discrimination.
The Family Educational Rights and Privacy Act (FERPA) protects the privacy of student education records. Under the FERPA, schools must have prior written consent before releasing information from a student’s education record to others aside from a parent/legal guardian.
Title IX protects transgender students from sex discrimination. See Dear Colleague Letter & Title IX and Sexual Violence Q&A.
U.S. Constitution, First Amendment Protects the privacy right of students. Title IX of the Education Amendments of 1972, 20 U.S.C. §1681 et seq. Title IX prohibits discrimination and harassment based on sex in educational institutions, programs, and activities that receive federal financial assistance. This includes formal and informal school policies as well as harassing or discriminatory action by individual school personnel, and also includes failing to respond effectively to student-on-student harassment and bullying. • U.S. Department of Education (USDE) guidelines issued in 2014 (April 29, 2014) clarify USDE’s position that Title IX’s sex discrimination prohibition extends to claims of discrimination based on gender identity or failure to conform to stereotypical notions of masculinity or femininity. • When school districts fail to provide protections, the Department of Education’s Office for Civil Rights (OCR) and the Justice Department’s Civil Rights Division have initiated complaint investigations and districts have been held liable for failure to protect. (Arcadia Unified School District, OCR 09-1201020, DOJ 16912-C-70, United States Department of Education Office of Civil Rights, July 2013; Maine Supreme Court John and Jane Doe, on behalf of Susan Doe v. Regional School Unit 26,_A.3d_,2014 WL 325906; US Department of Justice DOJ Case No. DJ 169-12C-70, OCR Case No. 09-12-1020; United States Department of Education Office for Civil Rights, Downey Unified School District (CA) (2011). Case No. 09-12-1095 • A USDE Dear Colleague letter (October 20, 2010) states that Title IX protects all students, including lesbian, gay, bisexual and transgender students from sex discrimination. • A USDE Dear Colleague letter (April 4, 2011) states that sexual harassment and sexual violence are prohibited forms of sex discrimination under Title IX. • The USDE December 20, 2014 guidelines for K-12 schools that implement single-sex classes and activities under specified circumstances state that schools must treat students consistent with their gender identity in all aspects of single sex classes and extra-curricular activities. • Case law interpreting Title IX as it applies to transgender students is not settled, despite USDE’s position.
The Equal Access Act (1984), 20 U.S.C. §7905 •Requires public secondary schools to provide equal access to school premises for extracurricular clubs. •Ensures that non-curricular student groups are afforded the same access to public secondary school facilities as other similarly situated student groups. •A USDE Dear Colleague letter (June 14, 2011) reaffirms the principles that prohibit unlawful discrimination against any student-initiated groups and speaks specifically to the rights of lesbian, gay, bisexual and transgender (LGBT) students to form gay-straight alliances (GSAs) and similar student organizations.
Family Educational Rights and Privacy Act (FERPA) (20 U.S.C. § 1232g; 34 CFR Part 99) and the Code of Maryland Regulations (COMAR) 13A.08.02.14 Parents or eligible students (students who are over age 18 or in a post-secondary program) have the right to request that a school correct records which they believe to be inaccurate, misleading, or an invasion of privacy. If the school decides not to amend the record, the parent or eligible student then has the right to a formal hearing. After the hearing, if the school still decides not to amend the record, the parent or eligible student has the right to place a statement with the record setting forth his or her view about the contested information.
The legal basis for the following recommendations is grounded in the U.S. Department of Education (USED) Office for Civil Rights’ (OCR) interpretation of Title IX. As a condition of receiving federal funds, schools agree that they will not discriminate on the basis of sex in their educational programs or activities. The USED treats a student’s gender identity as the student’s sex. This interpretation is consistent with courts’ and other agencies’ interpretations of federal laws prohibiting sex discrimination.11 In essence, schools must not treat a transgender student differently from the way they treat other students of the same gender identity, regardless of the student’s sex assigned at birth.
Title IX permits a school to provide gender-segregated restrooms, locker rooms, athletic teams, and classes, as long as they are comparable. When a school provides gender-segregated activities and facilities, transgender students should be allowed to participate in such activities and access such facilities consistent with their gender identity. Providing transgender students with activities and facilities consistent with their gender identity may feel uncomfortable for some students and/or their families. The OCR has emphasized, “a school’s Title IX obligation to ensure nondiscrimination on the basis of sex requires schools to provide transgender students equal access to educational programs and activities even in circumstances in which other students, parents, or community members raise objections or concerns. As is consistently recognized in civil rights cases, the desire to accommodate others’ discomfort cannot justify a policy that singles out and disadvantages a particular class of students.”
In 2011, the U.S. Department of Education Office for Civil Rights (OCR) stated that school officials, under Title IX, have a duty to investigate gender discrimination and harassment claims concerning actual or perceived sexual orientation as well as failure to conform to traditional societal notions of male and female.7 In 2014, OCR provided additional guidance to schools investigating claims based on gender identity and failure to conform to societal stereotypes and actual or perceived sexual orientation.
Title IX and the Minnesota Human Rights Act declare that it is an unfair discriminatory to deny any student the full and equal enjoyment of any educational institution such as a public school. Schools ensure full and equal enjoyment of public accommodations for students where they are not stigmatized or segregated from the rest of the general student population when in exercising their right to the public accommodation. “A policy that requires an individual to use a bathroom that does not conform to his or her gender identity punishes that individual for his or her gender nonconformance, which in turn violates Title IX.” Whitaker v. Kenosha Unified School District, (7th U.S. Circuit Court of Appeals, May 30, 2017).
Title IX of the Education Amendments of 1972 (“Title IX”) specifically prohibits discrimination on the basis of sex in federally-funded education programs and activities.5 The United States Department of Education’s Office for Civil Rights has issued guidance recognizing that Title IX protects transgender students against discrimination based on their gender identity.
Additionally, the U.S. Departments of Education and Justice have stated that under Title IX, “discrimination based on a person’s gender identity, a person’s transgender status, or a person’s nonconformity to sex stereotypes constitutes discrimination based on sex” and asserted a significant interest in ensuring that all students, including transgender students, have the opportunity to learn in an environment free of sex discrimination in public schools.
Additionally, federal law under Title IX of the Education Amendments of 1972 (Title IX) generally prohibits discrimination on the basis of sex in federally funded programs and activities.4 The United States Department of Education’s Office for Civil Rights (OCR) has issued guidance recognizing that Title IX protects transgender and gender nonconforming students.5 Additionally, the U.S. Departments of Education and Justice have stated that under Title IX, “discrimination based on a person’s gender identity, a person’s transgender status, or a person’s nonconformity to sex stereotypes constitutes discrimination based on sex” and has asserted a significant interest in ensuring that all students, including transgender students, have the opportunity to learn in an environment free of sex discrimination in public schools.6 Recently, a federal court upheld this interpretation of federal law by the U.S. Department of Education.
Title IX prohibits discrimination on the basis of sex in federally funded education programs and activities. Regulations issued by the OCR authorize schools to offer single-sex classes or extracurricular activities only under certain circumstances. For these reasons, school districts should consult with their Title IX Coordinator or legal counsel to review such policies, rules and practices, and should eliminate any that do not serve a clear pedagogical purpose. In 2014, OCR issued guidance relating to Title IX which stated that: “All students, including transgender students and students who do not conform to sex stereotypes, are protected from sex-based discrimination under Title IX. Under Title IX, a recipient generally must treat transgender students consistent with their gender identity in all aspects of the planning, implementation, enrollment, operation, and evaluation of single-sex classes.”
School districts, as well as students and their families, may find the use of restrooms, locker rooms, changing facilities, and participation in extracurricular activities to be among the more important issues to consider. OCR has recognized that school districts “in preventing and redressing discrimination, … must formulate, interpret and apply their rules in a manner that respects the legal rights of students, including constitutional rights relating to privacy.”22 In 2015, the United States Departments of Education and Justice stated that:
Under Title IX, discrimination based on a person’s gender identity, a person’s transgender status, or a person’s nonconformity to sex stereotypes constitutes discrimination based on sex. As such, prohibiting a student from accessing the restrooms that matches his (her) gender identity is prohibited sex discrimination under Title IX. There is a public interest in ensuring that all students, including transgender students, have the opportunity to learn in an environment free of sex discrimination.23
Based on a recent OCR finding against an Illinois school district, it is recommended that alternative accommodations, such as a single “unisex” bathroom or private changing space, should be made available to students who request them, but should not be forced upon students, or presented as the only option. OCR in a recent report issued to an Illinois school district found the district in violation of Title IX for excluding a high school student who is transgender “from participation in and denying her the benefits of its education program, providing services to her in a different manner, subjecting her to different rules of behavior, and subjecting her to different treatment on the basis of sex.”24 The school district had honored the student’s request to be treated as female in all respects except for her request to be provided access to the girl’s locker rooms. The student used a restroom to
change for PE class but did not take the most direct route from the restroom to the gymnasium “because it’s embarrassing. Everyone would see me.” She also took a circuitous route to PE class to avoid standing out. Her PE teacher reported that the student was frequently late to class. In another instance, the student did not receive information given to other students in the locker room by the PE teacher. The district installed ten private changing areas in the girl’s locker room 22 Investigation Report, United States Department of Education, Office of Civil Rights issued to Township High School District 211, Palantine Illinois, OCR Case No. 05-014-1055, page 12 (November 2, 2015).
23 Grimm v. Gloucester County School Board, Case No. 4:15cv54 (E.D. Virg. filed June 29, 2015) statement of interest. 24 Investigation Report, United States Department of Education, Office of Civil Rights issued to Township High School District 211, Palantine Illinois, OCR Case No. 05-014-1055 (November 2, 2015). 10 including five shower areas and five restroom stalls. The student also stated her intention was to change privately in one of the changing areas. OCR stated “the District could satisfy its Title IX obligations as well as protect potential or actual student privacy interests.” OCR concluded “that the District, on the basis of sex, excluded [the student] from participation in and denied her the benefits of its education program, providing her different benefits or benefits in a different manner, subjected her to different rules of behavior, and subjected her to her to different treatment in violation of the Title IX regulation, at 34 C.F.R. section 106.31.”
The First Amendment of the U.S. Constitution protects the right to privacy, free speech and freedom of expression. The Federal Civil Rights Act of 1964 prohibits discrimination based on race, color, religion, sex, or national origin. Title IX of the Education Amendments of 1972 specifically prohibits discrimination on the basis of sex in any education program that receives federal funding within the Civil Rights Act. All public and private elementary and secondary schools, school districts, colleges, and universities receiving any federal financial assistance must comply with Title IX. On April 4, 2011 the Office for Civil Rights (OCR) in the U.S. Department of Education (USDOE) issued a Dear Colleague Letter concerning student on student violence to clarify a school’s legal responsibility to respond promptly and effectively to sexual violence against students in accordance with the requirements of Title IX.
Title IX’s sex discrimination prohibition extends to claims of discrimination based on gender identity or failure to conform to stereotypical notions of masculinity or femininity and OCR accepts such complaints for investigation. Similarly, the actual or perceived sexual orientation or gender identity of the parties does not change a school’s obligation. Indeed, lesbian, gay, bisexual and transgender youth report high rates of sexual harassment and sexual violence. A school should investigate and resolve allegations of sexual violence regarding LGBT students using the same procedures and standards that it uses in all complaints involving sexual violence. The fact that incidents of sexual violence may be accompanied by anti-gay comments or be partly based on a student’s actual of perceived sexual orientation does not relieve a school of its obligations under Title IX to investigate and remedy those instances of sexual violence.
Additionally, the USDOE Office of Civil Rights (April, 2014) developed an accompanying guidance on Questions and Answers on Title IX and Sexual Violence. On May 13, 2016 the U.S. Departments of Justice and Education released joint guidance to help provide educators the information they need to ensure that all students, including transgender students, can attend school in an environment free from discrimination based on sex. The guidance also explains 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 June, 2016 Page 2 Protect students’ privacy related to their transgender status under Title IX and the Family Educational Rights and Privacy Act. Further information on the most recent federal guidance may be accessed through the official announcement on the US Department of Justice web site.
Family Educational Rights and Privacy Act (FERPA) (20 U.S.C. § 1232g; 34 CFR Part 99) is a Federal law that protects the privacy of student education records. The law applies to all schools that receive funds under an applicable program of the USDOE. FERPA gives parents certain rights with respect to their children's education records. These rights transfer to the student when he or she reaches the age of 18 or attends a school beyond the high school level. Access to and review of official school records by parents is included.
The Federal Equal Access Act ensures that noncurricular student groups are afforded the same access to public secondary school facilities as other, similarly situated student groups. Based on decisions of the U.S. Supreme Court and other federal courts interpreting the Act, the USDOE’s Office of the General Counsel provides the following guidance: The Act applies to: (1) any public secondary school (2) that receives federal funds (3) and creates a limited open forum by allowing one or more noncurricular student groups to meet on its premises (4) during non-instructional time. Schools meeting these criteria are forbidden to prevent access or deny fair opportunity to students who wish to hold meetings on school grounds.
The Act does not mention specific types of student groups to which equal-access rights apply. It instead broadly provides that schools allowing at least one “non-curriculum related student group” may not deny comparable access to any other student group because of the “religious, political, philosophical, or other content of the speech at [the group’s] meetings.” The Act therefore prohibits schools from banning student-led noncurricular groups because of the content of the speech at the groups’ meetings.
The Act identifies narrow exceptions; however, schools may not ban or suppress the speech of student groups based on a “desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.”
Family Educational Rights and Privacy Act of 1974 (FERPA) This law allows parents of students under 18 years of age to obtain their child’s educational records and seek to have the records amended. This law also gives parents the right to have disclosure of identifiable information from the records Information in the STARS/Aspen database, even the “Preferred Name” Field (See Transitions section) is an official educational record. Former or current students have the right to seek to amend their records if the information in present records is “inaccurate, misleading, or in violation of the student’s rights of privacy” (34 C.F.R. § 99.7(a)(2)(ii)). Transgender students who wish to change their name and gender marker on their educational records have the right to seek such an amendment under this federal law, provided the amendment must be pursued by the student’s parent if the student is under 18 years of age.
Title IX, Education Amendments of 1972 Title IX ensures that no person is discriminated against because of their gender in any academic program including, but not limited to, admissions, financial aid, academic advising, housing, athletics, recreational services, health services, counseling and psychological services, classroom assignment, grading and discipline. Although Title IX does not expressly address gender identity or expression directly, this law has been used in the protection of transgender and gender-‐nonconforming citizens against discrimination because discrimination based on gender identity qualifies as sex discrimination. In the April 2014 guidance on Title IX and Sexual Violence, the Department of Education clarified the protection of all students, including transgender and gender nonconforming students, under Title IX.