ED's Dear Colleague Letter on Transgender Students: Title IX as Leverage for Support and Inclusion

According to the advocacy group Campus Pride, there has been a rise in the number of transgender and genderqueer students on college campuses in recent years.  Many higher education institutions have added “gender identity and gender expression” to their non-discrimination statements over the past decade.  At progressive institutions such as the University of California, student insurance has covered hormone treatments and gender-confirming surgery for several years.  As in other dimensions of social justice, progress is not linear, and set-backs occur.  For example, in my home state of North Carolina, the state legislature passed HB2 in March 2016, which requires transgender people to use bathrooms matching the sex listed on their birth certificate. It also repealed an LGBT protections law in North Carolina’s largest city, Charlotte, and prevents other cities from passing similar legislation.

Perhaps in response to this and other state laws, the federal government is reminding states that existing federal law prohibits discrimination based upon gender.  In their May 13, 2016 Dear Colleague letter, the Department of Justice and the Department of Education offer significant new guidance on the obligations of educational institutions regarding compliance with Title IX. The new guidance is specifically geared toward ensuring that transgender students have access to a supportive and non-discriminatory school environment.

The letter notes that “as a condition of receiving federal funds, a school agrees that it will not exclude, separate, deny benefits to, or otherwise treat differently on the basis of sex any person in its educational programs or activities...” The May 13 Dear Colleague letter clarifies that, based on legal and administrative precedent, the Department of Justice and Department of Education treat a person’s gender identity as their legal sex, and thus, “a school must not treat a transgender student differently from the way it treats other students of the same gender identity.”

The Dear Colleague letter identifies several specific arenas in which transgender students must receive equitable treatment. They include:

1. Safe and Nondiscriminatory Environment

Schools have an obligation to create an environment free of harassment for transgender students. This means both that schools must take steps to prevent harassment against transgender students, and that a school’s failure to treat students in accordance with their gender identity may create a hostile environment.

2. Identification Documents, Names, and Pronouns

Schools have an obligation to use the name and gender pronouns that align with a student’s gender identity, even if their educational records or identity documents indicate a different sex.

3. Sex-Segregated Activities and Facilities

When a school provides sex-segregated restrooms, locker rooms, shower facilities, housing, athletic teams, and classes (as permitted by law), transgender students must be allowed to participate in such activities and access such facilities in a manner consistent with their gender identity.

4. Privacy and Education Records

Schools have an obligation to protect transgender students’ privacy, including the protection of their legal name and the sex they were assigned at birth.

Institutions with aging physical plants typically have greater difficulty complying with restroom and locker room provisions, as significant renovations may be required.  With a more recent rise in the use of single stall restrooms it is simpler to convert these to all-gender facilities.   More problematic may be aging student information systems or other enterprise software.  Binary gender identities can be built into system architectures, and it may be challenging to offer modifications necessary to be responsive to a student’s changing identity. 

The “Common App,” beginning with the 2016-17 academic year, is offering options for transgender students in how they can identify themselves in the college application process.   Gil Villanueva, Board of Directors President of the College Board states, “we want to make sure that all students have the ability to express themselves in the ways in which they feel most comfortable. We are now at a place where we believe we can make an adjustment that not only serves students, but also helps to meet the needs of member colleges and universities.”

Students activists and university leaders across North Carolina have been active in the fight against HB2, joining with ACLU in the struggle.  Wake Forest University President Nathan Hatch penned an editorial in the Charlotte Observer articulating the case against HB2

Recently, a federal judge has blocked the University of North Carolina from enforcing part of the state’s recent HB2 law that limits bathroom use by transgender people, adding that the plaintiffs “are likely to succeed on their claim” that the law is discriminatory.  While the case is still being heard, their August 26 preliminary injunction will prevent the university from enforcing the provision of the law that applies to bathroom use for the plaintiffs in the case.

Universities seeking to ensure that their existing policies and procedures are in compliance with the recent guidance offered on the May 11 Dear Colleague letter might ask themselves these questions:

·         Is our housing/room selection process in compliance with this guidance?

·         Are we prepared to house students according to their gender identity and provide a safe environment for them? 

·         Are transgender students currently able to use the locker room and restroom that matches their gender identity?

·         What training is needed for university staff on how to respond to questions about bathroom and locker room usage?

·         Do we have the capacity in our university data systems to recognize students by the pronouns and names that align with their gender identity?