The U.S. Department of Education’s Office of Civil Rights recently issued a Notice of Interpretation (“Notice”) explaining that Title IX’s prohibition on discrimination on the basis of sex will include discrimination based on sexual orientation and gender identity. This announcement signals a complete change to previous administration policies and was sparked by a Supreme Court decision in Bostock v. Clayton County. There, the Supreme Court recognized that it is impossible to discriminate against a person based on their sexual orientation and gender identity without discriminating against that person based on sex. In all, the court ruled that discrimination based on sexual orientation or gender identity is unconstitutional.
Foremost, Title IX states that “no person in the United States shall, on the basis of sex, be excluded from participation in, be denied benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” This title applies to all educational programs and activities that receive federal funding and requires them to operate in a nondiscriminatory manner.
Current Laws Protecting Transgender Students
Fortunately, California’s LGBTQ education laws are among the most progressive in the country. California law affords equal rights and opportunities to all persons in public schools regardless of that person’s gender, gender identity, gender expression or sexual orientation. This creates an affirmative obligation to combat sexism and other forms of bias, and a responsibility to provide equal educational opportunity. The expansion of Title IX aligns federal law with California state laws and bolsters protections for transgender students.
Restrooms and Locker Rooms
Students have a right to use the restrooms and locker rooms that correspond with their gender identity. Schools cannot force or encourage students to use facilities that don’t align with their gender identity. Also, schools may not relegate transgender students to isolated areas within a bathroom or locker room.
Preferred Names, Pronouns and Student Records
The Notice conferred onto students the right to be addressed by the names and pronouns that they choose to use. Teachers and school officials must use the correct name and pronouns when speaking to students. Any repeated violation of this could incur legal ramifications. Also, schools should use preferred names and pronouns when drafting documents that are considered student records. This condition applies even where a student does not legally change their name or gender. However, the preferred names must not be used for purposes of misrepresentation or to avoid legal responsibilities.
Dress Codes
The Notice does not limit a school’s ability to enforce a dress code. However, transgender students have the right to dress in conformity with their gender identity, such that if a transgender girl wears a skirt, similar to other girls, schools are not permitted to deem that a dress code violation. This provision emphasizes that schools should not implement policies that force transgender students to conform to stereotypical notions of masculinity or femininity
Participation in Sports, Physical Education and Extracurriculars
The Notice also permits students to participate in sex-segregated school programs and activities, including athletic teams and competitions, and use facilities consistent with their gender identity irrespective of the gender listed on the pupil’s records.
Non-Binary Students
Title IX does not limit its protections to just transgender boys and girls, but also to students whose genders are not exclusively male or female. This is referred to as non-binary or genderqueer. Students who identify as non-binary or genderqueer should be afforded the same protections as transgender students, such as determining which locker rooms or restrooms, pronouns and dress codes they intend to follow.
Right to Privacy
Federal law provides students with a right to privacy regarding their personal information. The personal information of a transgender student is considered highly sensitive due to the overwhelming amount of adversity transgender students face from peers. Schools should seek to provide an environment that allows transgender students the right to decide who knows of their transgender status. Revealing any information regarding a student’s transgender status, birth name, sex assigned at birth or medical history to classmates, parents, teachers, and others may violate the Family Educational Rights and Privacy Act (“FERPA”).
Of course, there are exceptions to this condition. A school may share personal information related to a transgender student if there is a legitimate educational reason for sharing. However, schools should conduct a balancing test to determine if the educational need for the information outweighs a student’s right to privacy. Additionally, FEPRA provides parents with the right to request information in a student’s official school record. Unfortunately, many transgender students do not have supportive households and the release of information could place a student in an uncomfortable position or even danger. Thus, it is critical that school officials work with transgender students on an individual basis to determine how schools should respond to request for information.
Enforcing Transgender Students’ Rights
Schools are highly encouraged to adopt policies that reflect the protections provided for transgender students through the extension of Title IX. However, if schools do not follow the Title IX requirements, the Department of Education Office of Civil Rights can enforce these protections in several ways. The Department of Education may sue schools that discriminate against transgender students and possibly deny federal funding. Additionally, parents and students may file complaints with the Office of Civil Rights alleging discrimination based on gender identity or sexual orientation that could lead to investigations.
In the Notice, U.S. Secretary of Education Miguel Cardona emphasized that “all students, including LGBTQ+ students, deserve the opportunity to learn and thrive in schools that are free from discrimination.” Adhering to these protections for students contributes to developing an inclusive and safe school environment. If school districts have questions about implementing Title IX or handling issues involving transgender students or even employees, OMLO’s Education practice group can provide accurate counsel and advice.
OMLO will continue to monitor these developments carefully. This article is for informational purposes only and only provides an overview of specific developments. It is not intended to be, and should not be construed as, legal advice for any particular fact situation. For actual legal advice and specifics pertaining to your governmental entity, please contact your OMLO attorney for assistance.