Bradley Domangue 2016-08-25 02:21:52
The U.S. Department of Education’s Office for Civil Rights, in coordination with the Department of Justice’s Civil Rights Division, issued new guidance in May to address the usage of certain school facilities by transgender students in the context of Title IX. The word “transgender,” according to the Office for Civil Rights, describes individuals whose gender identity is different from the sex they were assigned at birth.1 Transgender issues have garnered significant attention from the press, parents, educational professionals, and politicians.2 Based on the recent flurry of state and national legal queries, some school officials are treading carefully to recognize federal guidance as well as guidance from the state and local levels.3 Title IX of the Education Amendments of 1972 provides that: “[n]o person ... shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.” 20 U.S.C. § 1681(a). Under Title IX, 20 U.S.C. § 1681, et seq., school districts and higher education institutions that receive federal funds must have policies that effectively prevent discrimination against a student based on that student’s sex.4 Failure to do so can result in the loss of federal funding. The Department of Education and the DOJ’s recent Dear Colleague Letter on Transgender Students was in response to requests from education professionals and institutions seeking clarification regarding the balance of transgender students’ rights, privacy issues for nontransgender students, and Title IX.5 Dear Colleague Letters from the Office for Civil Rights are not regulations in and of themselves; however, the office considers them significant guidance to prevent possible violations under Title IX and other statutes within its jurisdiction. If a complaint is filed under Title IX, the office will use standards established under its previous decisions and guidance as the basis for its finding.6 The letter issued May 13 states that Title IX prohibits “discrimination based on a student’s gender identity, including discrimination based on a student’s transgender status.”7 As such, educational institutions must provide transgender students equal access to educational programs and activities. It states that “as is recognized in civil rights cases, the desire to accommodate others’ discomfort cannot justify a policy that singles out and disadvantages” transgender students.8 Additionally, a “school’s failure to treat students consistent with their gender identity may create or contribute to a hostile environment in violation of Title IX.”9 The letter provides specific guidance concerning how educational institutions should accommodate transgender students to avoid violating Title IX: 1) Maintain a safe nondiscriminatory environment. Although Texas has anti-bullying laws and school districts have policies preventing bullying, the guidance letter states that a student being targeted by other students, school employees, or third parties on school property, based on that student’s transgender status, is not just bullying but is harassment that violates Title IX, and schools should investigate it as such and take effective steps to stop it.10 2) Identification documents, names, and pronouns. Schools must treat transgender students consistent with their gender identities even if their education records or identification documents indicate that the student’s sex assigned at birth is different from the student’s gender identity. This specifically includes using pronouns and names consistent with the student’s gender identity.11 3) Sex-segregated activities and facilities. Transgender students must be permitted access to restrooms and locker rooms that coincide with their gender identities. Schools must review whether or not a transgender student can play on sports teams that are in line with that student’s gender identity. Schools must also accommodate transgender students in housing and overnight lodging and cannot, for example, require a transgender female to sleep in the same area as males because the transgender student’s sex assigned at birth is male nor can the school assign the student to a private room in housing or on overnight trips if students are typically assigned shared rooms. According to the letter, such action done only to avoid controversy or community concerns is discriminatory and violates Title IX.12 Addressing some political and community leaders who have cited privacy issues and safety concerns for nontransgender students, the federal guidance letter stipulates that these are not sufficient to isolate transgender students to unisex restrooms or locker rooms; however, it also states that schools can offer students with privacy concerns access to unisex bathrooms.13 Educational institutions should review each transgender student’s case individually and consider the current student’s status in his or her gender transition, obtain input from parents and other persons familiar with the student, and consider other factors, including the student’s age and how comfortable the student is with his or her personal information given to the school being shared with others, including various educators and other students, staff, and parents. There is limited federal caselaw regarding Title IX and transgender students, but the letter looks to caselaw regarding Title VII of the Civil Rights Act of 1964 and transgender employees and discrimination claims based on sex.14 On April 19, a federal court of appeals issued a decision, which is not binding on Texas courts, regarding a transgender student’s Title IX discrimination claim.15 The court ruled that the Office for Civil Rights’ interpretation of Title IX was within its powers and scope and that, because it has jurisdiction over Title IX, its guidance on Title IX and transgender students was applicable under current law. It remanded the case back to the lower court to review the student’s complaint under the office’s guidance and interpretation. The U.S. Supreme Court has since blocked the lower court’s decision to allow the transgender male to use male facilities until the court has had a chance to review the school board’s petition for writ of certiorari.16 In Texas, some have expressed concern that various school districts and the Department of Education have overreached in their attempts to implement Title IX protections for transgender students. On May 25, Texas and 10 other states sued the Department of Education and other federal agencies seeking declaratory and injunctive relief based on federal overreach regarding the agencies’ interpretation of federal laws and transgender issues.17 On August 12, a preliminary injunction hearing was held in district court in the Northern District of Texas, and on August 21, Judge Reed O’Connor granted a nationwide temporary injunction preventing the guidance from the Department of Education and the DOJ from going into effect.18 According to O’Connor, “[t]his case presents the difficult issue of balancing the protection of students’ rights and that of personal privacy when using school bathrooms, locker rooms, showers, and other intimate facilities, while ensuring that no student is unnecessarily marginalized while attending school.”19 The court found that the injunction was proper because the Department of Education failed to comply with the Administrative Procedures Act by: (1) foregoing the APA’s notice and comment requirements, and (2) issuing directives that contradict existing legislative and regulatory texts.20 The court also ruled that a preliminary injunction was proper because the U.S. Supreme Court had recently issued a preliminary injunction on the court decision in G.G. ex rel. Grimm v. Gloucester Cnty. Sch. Bd.21 According to the court, the Department of Education’s interpretation of “sex” in its own regulations is not ambiguous and is specific to one’s sex assigned at birth and that Congress’s intent when Title IX was passed and enacted was specific to one’s sex assigned at birth.22 The injunction will remain in place until the court has made a final decision in this case or until the 5th Circuit Court of Appeals takes additional action.23 Additionally, Fort Worth Independent School District was recently criticized by state officials for providing expansive new protections to transgender students, including procedures that could potentially be interpreted as preventing district employees from sharing information with transgender students’ parents based on the request of the students.24 The Texas Attorney General recently issued an opinion specifically stating that, “[t]o the extent that the Transgender Student Guidelines adopted by Fort Worth Independent School District superintendent limit parental access to information about their child and operate to encourage students to withhold information from parents contrary to the provisions in chapter 26 [of the Texas Education Code], they violate state law.”25 Fort Worth Independent School District has since modified its policy to reflect the attorney general’s guidance.26 To say that the current status of law regarding transgender issues is unsettled is an understatement. School districts and educational institutions are waiting to see what kind of action the Department of Education and the DOJ might take, while also watching the next moves of its state leaders. As more lawsuits are filed and more court decisions are issued, school districts and other educational institutions should have a clearer understanding of how best to implement Title IX with respect to transgender students as well as their entire student body.27 Before taking additional policy steps, they should contact and get advice from their own counsel as the legal ground continues to change.28 Notes 1) A full review of transgender terminology can be found on the website for the National Center of Transgender Equality, http://www.transequality.org/issues/resources/transgender-terminology. 2) Ayala, Eva-Marie, Debate rages over Fort Worth ISD superintendent’s transgender bathroom policy, The Dallas Morning News (May 10, 2016), http://educationblog.dallasnews.com/2016/05/top-texas-official-takes-his-fight-against-transgender-policy-on-the-road-to-fort-worth .html/; Bissinger, Buzz, Caitlyn Jenner: The Full Story, Vanity Fair (June 25, 2015), http://www.vanityfair.com/hollywood/2015/06/caitlyn-jenner-bruce-cover-annie-leibovitz; Philipps, Dave, North Carolina Bans Local Anti-Discrimination Policies, New York Times (March 23, 2016), http://www.nytimes.com/2016/03/24/us/north-carolina-to-limit-bathroom-use-by-birthgender.html?mtrref=www.nytimes.com&gwh=B478BCAA2A33B5DFDEF1331C9B24DB69 &gwt=pay; Steinmetz, Katy, The Transgender Tipping Point, Time Magazine (May 29, 2014), http://time.com/135480/transgender-tipping-point/. 3) Regarding safety, the Office for Civil Rights has stated that transgender students are a vulnerable population who may face open hostility by other students and some adults. 4) Additionally, schools and other educational institutions are prohibited from discriminating against transgender employees under Title VII. What You Should Know About EEOC and the Enforcement Protections for LGBT Workers, U.S. Equal Employment Opportunity Commission, https://www.eeoc.gov/eeoc/newsroom/wysk/enforcement_protections_lgbt_workers.cfm; Lusardi v. Dep't of the Army, EEOC Appeal No. 0120133395, 2015 WL 1607756 (Mar. 27, 2015)(that intentional misuse of a transgender employee’s new name and pronoun may constitute sex-based discrimination and/or harassment), Jameson v. U.S. Postal Service, EEOC Appeal No. 0120130992, 2013 WL 2368729 (May 21, 2013), (that an employer’s failure to revise its records pursuant to changes in gender identity stated a valid Title VII sex discrimination claim); Complainant v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120133123, 2014 WL 1653484 (Apr. 16, 2014). 5) Dear Colleague Letter on Transgender Students, issued by U.S. Department of Justice, Civil Rights Division, and U.S. Department of Education, Office for Civil Rights. (May 13, 2016). 6) Id. at 1. 7) Id. at 2. 8) Id. 9) Id. 10) Id. at 2-3. 11) Id. (Additionally, the Dear Colleague Letter says schools cannot require medical documentation that the student is transgender.) 12) Id. 13) Id. at 2-3; Township High School District 211 (Ill.), Agreement to Resolve, OCR Case # 05-14-1055 (December 2, 2015). 14) Dear Colleague Letter on Transgender Students, issued by U.S. Department of Justice, Civil Rights Division, and U.S. Department of Education, Office for Civil Rights. (May 13, 2016) p. 2, fn. 5; See, e.g., Price Waterhouse v. Hopkins, 490 U.S. 228 (1989); Oncale v. Sundowner Offshore Servs. Inc., 523 U.S. 75, 79 (1998); Macy v. Dep’t of Justice, EEOC Appeal No. 012012081, WL 1435995 (Apr. 20, 2012). 15) G.G. ex rel. Grimm v. Gloucester Cnty. Sch. Bd., 822 F.3d 709 (4th Cir., 2016). 16) Gloucester Cnty. Sch. Bd. v. G.G. ex rel. Grimm, 579 U.S. ___, No. 16A52 (Aug. 3, 2016). 17) State of Texas, et al. v. United States of America; United States Department of Education, et al., Case No. 7:16-cv-00054-O (N.D. Tex. filed May 25, 2016). Two more states joined this lawsuit on July 6, 2016, and the plaintiffs amended the complaint seeking a nation-wide injunction instead of an injunction in just those states that are parties to the lawsuit. (Dkt. 11). 18) Id. (Dkt. 58). 19) Id., p. 1. 20) Id., p. 2. 21) Id., fn. 15; Supra previous paragraph. 22) Id., pp. 29-32. 23) Id., p. 37. 24) Tex. Att’y Gen. Op. No. KP-0100 (2016) at 2. “School personnel may only share this information on a need-to-know basis or as the student directs. This includes sharing information with the student’s parent or guardian” (citing FWISD guidance). 25) Id. at 6. 26) Taft, Isabelle, Fort Worth Revises Transgender Student Guidelines, Texas Tribune (July 20, 2016), https://www.texastribune.org/2016/07/20/fort-worth-revises-transgender-studentguidelines/. 27) Balingit, Moriah and Emma Brown, Transgender Students in Maryland, Wisconsin File Federal Discrimination Lawsuits, The Washington Post (July 19, 2016), https://www.washingtonpost.com/local/education/transgender-students-in-maryland-wisconsin-file-federal-discrimination-lawsuits/2016/07/19/2bd11f92-4dda-11e6-a7d8-13d06b37f256_story.html. 28) This article is meant for informational purposes only and should not be interpreted as legal guidance or advice. Any legal advice should be sought from your attorney. BRADLEY DOMANGUE is an attorney at Thompson & Horton and focuses his legal practice on the representation of schools, colleges, and other public entities. Prior to joining Thompson & Horton, Domangue worked in education law and policy as an attorney, a legislative aide, a senior policy analyst, and a journalist. He has worked on various educational issues including school finance, special education, student discipline, employment law, construction, and the public information and open meetings acts. For more information, go to thompsonhorton.com/BradDomangue.htm.
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