On May 13, 2016, the Department of Education’s Office for Civil Rights issued a Dear Colleague letter that summarized a school district’s Title IX obligations regarding transgender students. While the Dear Colleague letter provides guidance on what the Department of Education has determined to be required practices relating to transgender students, Iowa laws and policies already required similar practices.
Since 2007, every school district in Iowa has been required to have an anti-bullying/anti-harassment policy that addresses and protects students based upon specific traits or characteristics, one of which is gender identity. Additionally, Iowa’s Civil Rights Act, which prohibits discrimination in an educational setting has included gender identity has a protected class since 2007. The Department of Education had also previously addressed the issue in a statement from April 2014, which stated that Title XI’s prohibition against sex discrimination extended to discrimination based on gender identity.
The Department’s Dear Colleague letter goes further than previous guidance in that it specifically outlines that, consistent with Department of Education laws and regulations, school districts must do the following:
(1) A school must use pronouns, names, etc. that conform to a student’s gender identity.
(2) A school must allow students to participate in sports and activities that are consistent with their gender identity
(3) “A school may provide separate facilities on the basis of sex, but must allow transgender students access to such facilities consistent with their gender identity. A school may not require transgender students to use facilities inconsistent with their gender identity or to use individual-user facilities when other students are not required to do so. A school may, however, make individual-user options available to all students who voluntarily seek additional privacy.”
(4) A school district cannot “require a transgender student to stay in single occupancy accommodations” when overnight accommodations are necessary. The school district should honor a transgender student’s request to stay in the room of that student’s gender identity. However, if a transgender student requests such accommodations, the school district could honor them.
Some school districts have considered adopting specific policies regarding the use of facilities, including restrooms. However, we strongly caution school districts from adopting any policies in response to the recent guidance, especially any policies that would conflict with the Department of Education’s guidance because this could conflict with current District policy regarding non-discrimination as well as state and federal law.
When a school district is considering how to address issues involving transgender students, the school district should take measure to address each situation individually. This will include applying the relevant legal and practical guidance to a particular student or a particular situation while carefully taking into account the student’s current status, the student’s desires, the District’s facilities, and the rights of other students.
Yesterday, May 25, 2016, eleven states - Texas, Alabama, Wisconsin, West Virginia, Tennessee, Arizona, Maine, Oklahoma, Louisiana, Utah, and Georgia (plus Mississippi, which announced today that it would join as the twelfth state) - filed a federal lawsuit in Texas challenging the validity of the Dear Colleague letter. In their lawsuit, the states request that the court prevent the federal government from implementing the requirements outlined in the Dear Colleague letter.
A copy of the Department of Education’s Office for Civil Rights’ May 13, 2016, Dear Colleague letter can be found here.
If you have questions regarding the Department of Education’s Office for Civil Rights’ Dear Colleague letter, please contact Brett S. Nitzschke or Emily K. Ellingson at Lynch Dallas, P.C. at firstname.lastname@example.org or email@example.com or at 319-365-9101.