LawPulse

A joint letter from the U.S. Departments of Justice and Education affirming transgender rights addresses a number of issues, including sports.

Transgender rights are a hot-button issue in this election year. Target's recently announced policy of allowing people to use the bathroom that corresponds with their gender identity brought both praise and boycotting of the retailer. On May 13, 2016, the U.S. Department of Education ("DOEd") and the U.S. Department of Justice ("DOJ") issued a letter to every federally funded school - kindergarten through college (available at http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201605-title-ix-transgender.pdf). The letter outlines best practices for adapting school policies for transgender and transitioning students.

The Departments stated that discrimination against transgender students violates Title IX of the Educational Amendments of 1972. To clear up any confusion, the letter defines many terms that may not be in every school administrator's lexicon.

For example, the letter clarifies the difference between gender identity and the sex one is assigned at birth. While one's sex assigned at birth is what is recorded on a birth certificate (if one exists), "gender identity" refers to "an individual's internal sense of gender."

The "Dear Colleague" letter states that Title IX extends its protections to sex discrimination in educational programs. The agencies have determined that this protection encompasses a student's gender identity as well as the sex assigned at birth. The letter itself is "significant guidance" for all federally funded schools.

Highly persuasive authority

According to Chicago employment attorney Lori Ecker, federal appellate courts have considered similar Department opinions as highly persuasive authority. She points to the federal fourth circuit's April 2016 ruling in G.G. v. Gloucester County School Board, 2016 WL 1567467 (4th Cir. April 19, 2016).

In the Gloucester case, Gavin Grimm, a transgender male (a person who was born female but identifies as male), was forced to use a separate restroom that was segregated from the normal male and female restrooms. The fourth circuit cited to a January 7, 2015 opinion letter stating that schools must treat transgender students consistent with their gender identity. The court held that, while the opinion letter addressed a "novel" topic, the novelty of the position did not make the letter inconsistent with prior Department of Education practices.

Ecker notes that the many of the groups challenging Gavin Grimm's right to use the men's restroom took the position that the DOEd was making new law without going through the legislative process. "The Department was commenting on the current state of the law, not making new law," she says.

The fourth circuit's holding in Gloucester supports her statement, finding that the DOEd policies with regard to transgender students were in line with the Department's prior sex discrimination policies. According to Ecker, 22 states have filed lawsuits against the federal government in an attempt to override the Departments' stance on transgender rights.

The new DOEd/DOJ letter, which cites to the fourth circuit's ruling in Gloucester, provides schools with additional guidance. It is intended to help schools provide a "supportive and nondiscriminatory school environment," requiring schools to take "prompt and effective" steps to address and prevent the harassment of any transgender students.

Title IX requires federally funded schools to protect students from sexual harassment. Applying that protection to transgender students is logical, Ecker says. She points to the Chicago Public Schools as an exemplar: CPS has issued guidelines require full access to restrooms and locker rooms for all students based on their gender identity, regardless of their sex assigned at birth. Nothing in the Departments' letter prevents schools from making unisex/single-occupancy restrooms or dorm facilities available to all students.

Sports, single-sex classes and more

The Departments' letter states that schools should allow all students to use the facilities that match their gender identity. While schools may provide single-person unisex restrooms, they may not require transgender students to use them exclusively. Schools must also use the appropriate pronoun for transgender students - which is the one that is consistent with the student's gender identity. This requirement includes using the name a transgender student has chosen.

The letter also addresses school-sponsored sports. While participation in sports is intended to be based on a student's gender identity, contact sports and teams based on competitive skill may be an exception. Title IX does not prohibit age-appropriate requirements based on sound medical knowledge governing the impact of a student's participation in a particular sport. These requirements must be based on competitive fairness or physical safety.

Transgender students must also be allowed to access single-sex classes that are in line with their gender identity. The same goes for campus living facilities. Single-sex housing is permitted, but transgender students must be allowed to live in the buildings that match their gender identities.

In response to the letter, schools should educate students and staff, be receptive to complaints, and take prompt remedial action, Ecker says.