Office of Civil Rights Issues Letter on Rights of Transgender Students

By Sean A. Fields, Co-chair of the School Law Group

School Law Snapshot

On May 13, the Office for Civil Rights (OCR) of the U.S. Department of Education made headlines by issuing a "Dear Colleague" letter regarding the rights of transgender students. While "Dear Colleague" letters are not statutory or regulatory law, the letter is an expression of the OCR's interpretation of federal law and how the OCR intends to enforce the law.
The following are some of the important points from the OCR's letter:

  • The OCR will treat gender identity discrimination the same as sex discrimination for enforcement purposes under Title IX.
  • Schools are expected to treat students consistent with their gender identity even if education or identification records indicate a different sex.
  • A school may not require transgender students to use facilities such as restrooms and locker rooms that are inconsistent with their gender identity or require those students to use an individual-user facility when other students are not required to do so. Schools are permitted to make individual-user facilities available for any student making a voluntary request.
  • Schools are required to allow transgender students access to housing consistent with their gender identity and are not permitted to require those students to stay in single-occupancy accommodations. However, schools are permitted to grant any student's request for a single occupancy accommodation.

Federal Enforcement
The OCR's opinion is that gender identity discrimination would constitute sex discrimination and would be a violation of Title IX. Therefore, if gender identity based harassment creates a "hostile environment," the school is required to act promptly to end the harassment, prevent it from recurring and develop a remedy. According to the letter, a student is not required to provide a medical diagnosis, proof of treatment or documentation in order to be treated in a manner consistent with their gender identity.
Sex-Segregated Activities & Facilities
When dealing with the legal issues surrounding transgender students, the issue of the use of restrooms and locker rooms has generated the most controversy. The OCR's position on this issue is that a school must permit transgender students to use facilities that are consistent with their gender identity. Additionally, a transgender student may not be required to use an individual-user facility but schools are permitted to allow a student to use an individual-user facility if a student makes a request.
The OCR takes the position that schools are also required to provide transgender students access to housing or overnight accommodations consistent with the student's gender identity. This would include overnight school trips where the school provides housing or assigns accommodations. However, OCR does not view honoring the voluntary request of a student for a single-occupancy accommodation as a violation of Title IX.
Privacy & Education Records
In terms of privacy, the OCR stated that a school must take reasonable steps to protect the a student's privacy related to transgender status. That would include not disclosing the student's birth name or assigned sex at birth without the consent of the student. The OCR's view is that this kind of information is confidential.

The issue of the rights of transgender students is not unlike a number of social issues where public schools are placed in the middle of social debates that are ultimately decided by the courts. Because a number of legal issues including the use of bathrooms and locker rooms are largely unsettled in Pennsylvania, school districts should consider the following: Districts should pay particular attention to what a transgender student is specifically requesting when deciding how individual decisions are made. Additionally, although the law is changing rapidly and legal questions remain, school districts should take into consideration that an approach that is contrary to the OCR's guidance may result in the OCR taking legal action, and the loss of federal funds. Finally, the district should consult with the solicitor before making any decisions on these matters.