The Department of Education is poised to release on Friday its most detailed guidelines to date explaining the obligations that schools receiving public funding have to their transgender students.
These obligations include respecting the gender identity of transgender students by using the student’s preferred name and pronouns, and ensuring them access to sports teams, educational opportunities, and sex-segregated facilities that correspond with their gender identity, according to a draft of the DOE letter obtained by The Advocate.
The letter, which will be sent Friday to public K-12 schools nationwide, as well as to colleges and universities that receive federal funding, plainly defines a school’s responsibilities to its trans students under Title IX of the Education Amendments of 1972, which prohibits discrimination on the basis of sex in schools that receive any public funding.
“This prohibition encompasses discrimination based on a student’s gender identity, including discrimination based on a student’s transgender status,” reads the letter. “For purposes of the Department’s enforcement of Title IX, as explained in more detail in this letter, a student’s sex is determined by the student’s gender identity.”
The document further affirms that schools must use a student’s preferred name and pronouns, regardless of what is listed on the student’s official school records or government-issued identification. It notes that transgender individuals — especially young people — are frequently unable to attain updated legal documents, either because the state they live in does not allow such changes, because the student’s parents or guardians are not supportive of their identity, or because updating such documents is often time-consuming, costly, and frequently not an option available to people under the age of 18.
The letter, signed by DOE officials and members of the U.S. Department of Justice, is deemed a “significant guidance document,” though it is not legally binding. It builds on legal interpretations of Title IX’s trans inclusions long advanced by the Obama Administration, and marks the most direct instruction the federal agency has provided to schools since it issued a (much shorter) memo on the same issue in 2014.
The guidance comes in the same week that U.S. Attorney General Loretta Lynch delivered a historic speech affirming the civil rights of transgender Americans, promising that the Department of Justice and the entire Obama Administration will use its full force to put a stop to anti-transgender discrimination. Lynch (pictured above with Education Secretary Arne Duncan) also announced during that speech that the DOJ had filed a federal civil rights lawsuit against North Carolina for its discriminatory law known as House Bill 2, which, among other things, bars transgender people from using restrooms and locker rooms in government-run spaces that correspond with their gender identity.
The letter goes on to define several basic terms regarding transgender identities, many of which have been widely misinterpreted in the wake of controversial laws in North Carolina and Mississippi, which bar transgender people from using public facilities that match their gender identities.
The draft letter’s “terminology” section reads:
“Gender identity refers to an individual’s internal sense of gender. A person’s gender identity may be different from or the same as the person’s sex assigned at birth.
Sex assigned at birth refers to the sex designation recorded on an infant’s birth certificate should such a record be provided at birth.
Gender expression refers to how individuals represent their gender to others, often through appearance or behavior.
Transgender describes those individuals whose gender identity is different from the sex they were assigned at birth. A transgender male is someone who identifies as male but was assigned the sex of female at birth; a transgender female is someone who identifies as female but was assigned the sex of male at birth.”
The letter primarily focuses on the implementation of Title IX’s protections against sex-based discrimination in educational settings, stressing that the Department of Education “treats a student’s gender identity as the student’s sex for the purposes of Title IX.”
“This means that a school must not treat transgender students differently from the way it treats other students of the same sex,” continues the draft letter. “For example, a school must treat transgender female students the same way it treats other female students.”
Federal funding, including financial aid, is generally tied to a school’s compliance with Title IX, except in cases where a school has obtained a waiver — often seeking a religious exemption. As a condition of receiving those federal funds, schools must guarantee that they will not “exclude, separate, deny benefits to, or otherwise treat differently on the basis of sex” any student attending the institution.
The letter instructs that a school must accept and affirm a student’s gender identity from the moment administrators are notified by the student’s parent or guardian. This affirmation includes providing equal access to the appropriate sex-segregated activities and spaces, including locker rooms and bathrooms.
Crucially, the letter notes that schools may not require any student to undergo any clinical, surgical, or mental health treatment as a condition of the school accepting the student’s affirmed gender identity. Schools also may not require that transgender students produce an updated birth certificate that reflects their gender identity as a condition of having that identity respected on campus. Such requirements constitute a violation of Title IX, the draft letter explains.
Further, the Department is clear that objections by other students, parents, or faculty to a transgender student’s identity are not legally sufficient reasons to deny that student equal access. In responding to such objections, the school cannot place “a greater burden on transgender students than other students.” Schools may address concerns about privacy in locker rooms or bathrooms by allowing all students access to alternate facilities, like single-stall restrooms, however a school may not require that only the transgender student use a separate facility.
“Discomfort with transgender people expressed by anyone, inside or outside of the school community, cannot justify denying transgender students equal access to educational programs and activities or treating transgender students inconsistent with their gender identity,” reads the draft letter.
The letter goes on to outline “common issues” that schools and administrators may face when working to support transgender students, including ensuring a “safe and nondiscriminatory environment,” using correct names and pronouns, protecting a transgender student’s privacy (including their birth name and sex assigned at birth) and ensuring equal access to sex-segregated activities and facilities.
While Title IX does allow for sex-segregated facilities, athletic teams, housing, and in some cases, entire schools, the draft letter is adamant that transgender students be granted access to such spaces that correspond with their gender identity.
In an example that seems pulled from the headlines of a drawn-out legal battle in Palatine, Illinois, where a transgender girl was barred from using the girl’s locker room and bathroom, and instead required to use a separate staff bathroom to change for class, the letter explains:
“A school may not require transgender students to use facilities inconsistent with their gender identity (e.g., a school may not require a transgender female student to use the male restroom) or to use individual-user facilities when other students are not required to do so. A school may, however, make individual-user facilities available to all students who seek additional privacy.
“For example, the Department may find a violation where a school requires a transgender student to use the nurse’s office to change for gym class. In that scenario, one nondiscriminatory way in which to accommodate any privacy concern would be to allow the transgender student to access the locker room consistent with the student’s gender identity and, if necessary, make other arrangements to increase privacy for all students without isolating or burdening the transgender student, such as rearranging locker assignments, hanging privacy curtains, or providing all students with access to individual-user alternatives.”