Transgender Students: Legal Issues
Update: On May 25, 2016, eleven states filed suit in the U.S. District Court for the Northern District of Texas against the following Defendants: United States of America and various U.S. agencies and their officials (including the U.S. Departments of Education, Justice and Labor and the Equal Employment Opportunity Commission) (collectively called the Dept. of Education (DOE)). The lawsuit primarily alleges that the May 13, 2016 Dear Colleague Letter on Transgender Students improperly imposed a new interpretation of Title IX on Plaintiffs, effectively “ rewrit[ ing] Title IX by executive fiat” instead of observing rulemaking procedures required by the federal Administrative Procedures Act (APA). See complaint in State of Texas et al. v. United States of America et al. The APA requires what is commonly referred to as the “notice and comment” process, whereby agency rules must be published in the Federal Register and the public given an opportunity to comment on them before they are finalized.
On August 21, 2016, the District Court issued a preliminary injunction (a legal tool used to stop a party to a lawsuit from going forward with a certain action, in this case, the DOE from enforcing its Dear Colleague Letter on TransgenderStudents) in State of Texas et al. v. United States of America et al., enjoining Defendants from enforcing the May 13, 2016 Dear Colleague Letter on Transgender Students and other agency guidance documents (collectively called “the Guidelines”). In so ruling, the District Court found that, “Defendants failed to comply with the Administrative Procedures Act by: (1) foregoing the Administrative Procedures Act’s notice and comment requirements; and (2) issuing directives which contradict the existing legislative and regulatory texts.” The DOE argued that the Guidelines “are merely expressions of the agencies’ views as to what the law requires,” are not legally binding, and do not expose Plaintiffs to new liability or legal requirements, therefore they do not constitute final agency action subject to the APA’s rulemaking procedures. The District Court disagreed. It reasoned that when “[u]sing a pragmatic and common sense approach, the DOE’s Guidelines and actions indicate that the eleven states (Plaintiffs) jeopardize their federal funding by choosing not to comply with DOE’s Guidelines.” Because these eleven states (Plaintiffs) “are legally affected in a way they were not before DOE issued the Guidelines,” the District Court held the Guidelines are legislative rules and the DOE should have complied with the APA’s notice and comment requirements.
The District Court stated its preliminary injunction should apply nationwide and specifically ordered that the DOE cannot:
- Initiate, continue, or conclude any investigation based on its interpretation that the definition of sex includes gender identity in Title IX’s prohibition against discrimination on the basis of sex .
- Use the Guidelines or assert the Guidelines carry weight in any litigation initiated following the date of the District Court’s injunction order.
While the District Court’s order is in place, pending Office for Civil Rights (OCR) investigations in Illinois may be stayed, but districts would be notified of that from OCR on a case-by-case basis and should consult with their board attorneys regarding OCR complaints. Districts must still follow state requirements of the Illinois Human Rights Act and an Illinois State Board of Education rule which prohibit discrimination against students on the basis of gender identity. 775 ILCS 5/5-101(11); 23 Ill.Admin.Code §1.240. Consult with your board attorneys regarding legal compliance in providing equal educational opportunities to transgender students and gender non-conforming students, including the scope and extent of accommodations.
School districts’ legal obligation to provide equal education and extracurricular opportunities to all students, including students identifying as transgender, is addressed in the sample PRESS policy 7:10, Equal Educational Opportunities. Please pay specific attention to the sample policy’s footnotes discussing the adoption of separate policies or inserting policy statements about accommodations and inclusion of transgender students in the educational program. Guidelines for implementing sample policy 7:10 specific to accommodating transgender or gender non-conforming students are set forth in PRESS Administrative Procedure 7:10-AP, Accommodating Transgender Students or Gender Non-Conforming Students. PRESS also provides a sample board exhibit for boards that want to inform their communities about the policies they have adopted that address the equal educational opportunities, health, safety, and general welfare of students within their districts. That exhibit is 7:10-E, Equal Educational Opportunities Within the School Community.
[Continue reading for a brief history of this issue.]
On May 13, 2016, the U.S. Department of Education (DOE) and the U.S. Department of Justice (DOJ) issued a joint Dear Colleague Letter on Transgender Students reminding schools that Title IX’s prohibition on sex discrimination encompasses discrimination based on a student’s gender identity and transgender status. The Dear Colleague Letter purportedly does not add legal requirements, but informs schools how the DOE and DOJ will evaluate whether they are complying with legal obligations. The DOE and DOJ state that such obligations include:
- Treating students consistent with their gender identity,
- Not requiring a medical diagnosis, medical treatment, or official identification documents as a prerequisite for a student to be treated consistent with their gender identity,
- Allowing transgender students to access sex-segregated activities (e.g., athletics and single-sex classes) consistent with their gender identity,
- Allowing transgender students to access sex-segregated facilities (including restrooms, locker rooms and housing/overnight accommodations) consistent with their gender identity, and
- Protecting transgender students’ privacy (for example, by not designating students’ sex as directory information).
The DOE simultaneously released an accompanying document, Examples of Policies and Emerging Practices for Supporting Transgender Students, to provide schools with information and examples for complying with these legal obligations.
On April 10, 2016, the National School Board Association (NSBA) released a guide discussing the various legal issues surrounding transgender students. The intent of this guide is to answer questions that school districts may have as they attempt to formulate policy which complies with state law, reflects community concerns, and ensures all students are safe and learning at school. Click on the following links for the NSBA press release and the accompanying guide, Transgender Students in Schools: Frequently Asked Questions and Answers for Public School Boards and Staff.
The guide particularly notes that what “is not clear at the moment, due to Title IX’s silence on the matter, is whether federal law protects transgender students based on their transgender status, or simply protects them from discrimination based on sex, and the extent of a school’s responsibilities in either case.” Transgender Students in Schools: Frequently Asked Questions and Answers for Public School Boards and Staff , p. 7, National School Boards Association (April 8, 2016).
Title IX prohibits exclusion and discrimination on the basis of sex. 20 U.S.C. §1681(a). The DOE and DOJ interpret Title IX sex discrimination to include a prohibition of discrimination based on gender identity and failure to conform to stereotypical notions of masculinity and femininity. Letter to Prince, ED Office for Civil Rights (Jan. 7, 2015).
At least one U.S. District Court disagreed with this interpretation but was eventually overturned. A transgender male student filed a Title IX complaint. It alleged he was discriminated against when the Defendant school district did not allow him to use the boys’ bathroom. In dismissing the complaint, the U.S. District Court for the East District of Virginia stated “[deferring] to [DOE]’s newfound interpretation would be nothing less than to allow [DOE] to ‘create de facto a new regulation’ through the use of a mere letter and guidance document.” G. G. v. Gloucester Cnty. Sch. Bd., 2015 WL 5560190, at *9 (E.D. Va. 2015).
On appeal, however, a panel of the U.S. Court of the Appeals for the Fourth Circuit reversed. G.G. v. Gloucester Cnty. Sch. Bd., 2016 WL 1567467, *4 (4th Cir. 2016). The Title IX regulation at issue, 34 C.F.R. 106.33, provides that:
A recipient may provide separate toilet, locker room, and shower facilities on the basis of sex, but such facilities provided for students of one sex shall be comparable to such facilities provided for students of the other sex.
While the Fourth Circuit found this regulation unambiguously refers to males and females, it found the regulation as a whole was ambiguous because “it is silent as to how a school should determine whether a transgender individual is male or female for the purpose of access to sex-segregated restrooms” and therefore “the regulation is susceptible to more than one plausible reading” as it is applied to transgender individuals and the District Court should have afforded it controlling weight. G.G., 2016 WL 1567467 at *8 . Plaintiff’s Title IX complaint was reinstated and has been remanded to the District Court for further litigation.
From a state law perspective, sex discrimination extends to claims of discrimination based on sexual orientation and gender identity. 775 ILCS 5/5-101(11); 23 Ill.Admin.Code §1.240. The Illinois Human Rights Act defines sexual orientation as the “actual or perceived heterosexuality, homosexuality, bisexuality, or gender-related identity whether or not traditionally associated with the person’s designated sex at birth.” 775 ILCS 5/1-103(O-1). Similar to Section 106.33, the Act permits schools to maintain single-sex facilities that are distinctly private in nature, e.g., restrooms and locker rooms. 775 ILCS 5/5-103. Even so, school districts have been recently subject to Illinois Department of Human Rights (IDHR) complaints alleging gender-related identity discrimination in violation of the Act. Such complainants have also alleged disability discrimination in violation of the Act based upon the student’s diagnosis of gender dysphoria. Unlike ED complaints, successful complainants in IDHR complaints are able to seek attorneys’ fees and costs in relief. 775 ILCS 5/8A-104(G).
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