U.S. Departments of Justice and Education Release Joint Guidance to Help Schools Ensure the Civil Rights of Transgender Students

buzzz worthy. . .

The federal government has involved itself in the battle over transgender bathroom bill. Public schools must allow transgender students to use the bathroom or locker room that corresponds to their gender identity the Departments of Justice and Education said on Friday. Citing Title IX regulations prohibiting sex discrimination in federally funded schools, the joint letter stated government funds may be withheld from schools that force transgender people to use a bathroom other than the gender they choose. States, such as Texas and Arkansas do not plan to adhere to the directives arguing they infringe on states' rights. The letter issues y the Department of Justice Department f Public Affairs follows in its entirety.

The U.S. Departments of Justice and Education released joint guidance today to help provide educators the information they need to ensure that all students, including transgender students, can attend school in an environment free from discrimination based on sex.

Recently, questions have arisen from school districts, colleges and universities, and others about transgender students and how to best ensure these students, and non-transgender students, can all enjoy a safe and discrimination-free environment.

Under Title IX of the Education Amendments of 1972, schools receiving federal money may not discriminate based on a student’s sex, including a student’s transgender status.  The guidance makes clear that both federal agencies treat a student’s gender identity as the student’s sex for purposes of enforcing Title IX.

“There is no room in our schools for discrimination of any kind, including discrimination against transgender students on the basis of their sex,” said Attorney General Loretta E. Lynch.  “This guidance gives administrators, teachers and parents the tools they need to protect transgender students from peer harassment and to identify and address unjust school policies.  I look forward to continuing our work with the Department of Education – and with schools across the country – to create classroom environments that are safe, nurturing, and inclusive for all of our young people.”

“No student should ever have to go through the experience of feeling unwelcome at school or on a college campus,” said U.S. Secretary of Education John B. King Jr.  “This guidance further clarifies what we’ve said repeatedly – that gender identity is protected under Title IX.  Educators want to do the right thing for students, and many have reached out to us for guidance on how to follow the law.  We must ensure that our young people know that whoever they are or wherever they come from, they have the opportunity to get a great education in an environment free from discrimination, harassment and violence.”

“Every child deserves to attend school in a safe, supportive environment that allows them to thrive and grow.  And we know that teachers and administrators care deeply about all of their students and want them to succeed in school and life,” said Principal Deputy Assistant Attorney General Vanita Gupta, head of the Justice Department’s Civil Rights Division.  “Our guidance sends a clear message to transgender students across the country: here in America, you are safe, you are protected and you belong – just as you are.  We look forward to working with school officials to make the promise of equal opportunity a reality for all of our children.”

“Our federal civil rights law guarantees all students, including transgender students, the opportunity to participate equally in school programs and activities without sex discrimination as a core civil right,” said Department of Education Assistant Secretary for Civil Rights Catherine E. Lhamon.  “This guidance answers questions schools have been asking, with a goal to ensure that all students are treated equally consistent with their gender identity.  We look forward to continuing to work with schools and school communities to satisfy Congress’ promise of equality for all.”

The guidance explains that when students or their parents, as appropriate, notify a school that a student is transgender, the school must treat the student consistent with the student’s gender identity.  A school may not require transgender students to have a medical diagnosis, undergo any medical treatment, or produce a birth certificate or other identification document before treating them consistent with their gender identity.

The guidance also explains schools’ obligations to:

• Respond promptly and effectively to sex-based harassment of all students, including harassment based on a student’s actual or perceived gender identity, transgender status or gender transition;
• Treat students consistent with their gender identity even if their school records or identification documents indicate a different sex;
• Allow students to participate in sex-segregated activities and access sex-segregated facilities consistent with their gender identity; and
• Protect students’ privacy related to their transgender status under Title IX and the Family Educational Rights and Privacy Act.

At the same time, the guidance makes clear that schools can provide additional privacy options to any student for any reason.  The guidance does not require any student to use shared bathrooms or changing spaces, when, for example, there are other appropriate options available; and schools can also take steps to increase privacy within shared facilities.

In addition to the departments’ joint Title IX guidance, the Department of Education’s Office of Elementary and Secondary Education also released Examples of Policies and Emerging Practices for Supporting Transgender Students, a compilation of policies and practices that schools across the country are already using to support transgender students.  The document shares some common questions on topics such as school records, privacy and terminology, and then explains how some state and school district policies have answered these questions, which may be useful for other states and school districts that are considering these issues.  In this document, the Department of Education does not endorse any particular policy, but offers examples from actual policies to help educators develop policies and practices for their own schools.

Many parents, schools and districts have raised questions about this area of civil rights law.  Together, these documents will help navigate what may be a new terrain for some.

The Department of Justice’s Civil Rights Division, created in 1957 by the enactment of the Civil Rights Act of 1957, works to uphold the civil and constitutional rights of all Americans, particularly some of the most vulnerable members of our society.  The division enforces federal statutes prohibiting discrimination on the basis of race, color, sex, disability, religion, familial status and national origin.  Additional information about the Civil Rights Division of the Justice Department is availablehere. 

The mission of the Department of Education’s Office for Civil Rights (OCR) is to ensure equal access to education and promote educational excellence throughout the nation through the vigorous enforcement of civil rights.  OCR is responsible for enforcing federal civil rights laws that prohibit discrimination by educational institutions on the basis of race, color, national origin, disability, sex and age, as well as the Boy Scouts of America Equal Access Act of 2001.  Additional information about OCR is available here.

The mission of the Department of Education’s Office of Elementary and Secondary Education (OESE) is to promote academic excellence, enhance educational opportunities and equity for all of America's children and families and to improve the quality of teaching and learning by providing leadership, technical assistance and financial support.  Additional information about OESE is available here.