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U.S. DOE and DOJ Issue Guidance Documents Addressing Rights of Transgender Students

By on May 16, 2016 in Students with 0 Comments

On May 13, 2016, the U.S. Departments of Education and Justice (“Departments”) issued a joint Dear Colleague Letter (“Letter”) specifically advising that Title IX of the Education Amendments of 1972 (“Title IX”), which prohibits sex discrimination in educational institutions and programs receiving Federal financial assistance, prohibits discrimination based on a student’s transgender status and/or gender identity. Dear Colleague Letter: Transgender Students (May 13, 2016). The Letter provides insight as to how the Departments analyze and evaluate whether school districts comply with Title IX with respect to transgender students. The Letter also references a guidance document prepared by the U.S. Department of Education titled Examples of Policies and Emerging Practices for Supporting Transgender Students for school districts to better understand their Title IX obligations.

As recipients of Federal funding, New Jersey public school districts and charter schools must be aware of the legal requirements under Title IX as they pertain to the rights of transgender students. The heart of Title IX mandates schools to ensure nondiscrimination on the basis of sex, which requires schools to provide transgender students equal access to educational programs and activities.  What does this mean for New Jersey public school districts?

First, a student’s gender identity (internal sense of gender, which may differ from the sex assigned at birth) must be considered as the student’s sex for the purposes of Title IX. That is, school districts are prohibited from treating a transgender student differently from the way they treat other students of the same gender identity, including the application of school rules. According to the Departments, when a student or parent notifies school administration that the student will assert a gender identity that differs from current records, the school district must treat the student consistent with his/her gender identity. Importantly, the Departments interpret Title IX to include no requirement that a student provide a medical diagnosis or treatment plan in order for a school district to treat that student consistent with his/her gender identity.

Second, Title IX requires school districts to maintain a safe and nondiscriminatory environment for all students, including transgender students. School districts must address harassment directed to a student based on sex, gender identity, transgender status, or transgender transition. In New Jersey, transgender students are also protected by the Anti-Bullying Bill of Rights Act, which addresses allegations of harassment, intimidation, and bullying.

Third, the Departments advise that when a school provides sex-segregated activities and facilities, it must allow transgender students to participate in those activities and access those facilities consistent with their gender identity. Specifically, a school may not mandate that transgender students use restrooms or locker rooms inconsistent with their gender identity or use individual-user facilities when other students are not required to do so. However, a school district is permitted to offer and make available individual-use facilities to all students who may voluntarily seek additional privacy.

Fourth, in connection with the Family Educational Rights and Privacy Act (“FERPA”), the Departments interpret Title IX to require schools to take reasonable measures to safeguard individual student privacy with regard to a student’s transgender status, including birth name and sex assigned at birth. While FERPA allows school personnel to share personal identifiable information with another staff member who has legitimate educational interest in the information without parental consent, the Departments urge schools to be sure that the disclosure of a student’s transgender status to other staff members is appropriate. In addition, while FERPA may permit the release of student directory information (i.e., name, address, telephone number, date and place of birth, honors and awards) without parental consent, school districts may not designate a student’s sex and/or transgender status as directory information because doing to may constitute a violation of privacy.

Fifth, a transgender student, like any other student, has the right under FERPA to request a school district to amend or correct information in the student’s educational record that is inaccurate, misleading, or in violation of the student’s privacy rights. If the school district denies the request, it must inform the student of the right to a hearing. If the request is still denied after the hearing, the school district must inform the student of the right to insert a statement in the record with the student’s comments on the contested information and/or a statement memorializing the student’s disagreement with the decision. Thereafter, the student’s statement must be included whenever the document in question is released.

Schools must be aware of the rights of transgender students so as not to violate Title IX and FERPA. For additional information with regard to developing and implementing policies and procedures to address the rights of transgender students, local boards of education and charter schools should consult with their board attorney.

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Sanmathi (Sanu) Dev

About the Author

About the Author:

Sanmathi (Sanu) Dev, Esq. concentrates her practice on the representation of boards of education and charter schools in all areas of school law including: labor and employment, special education, Section 504, student discipline, FERPA, Anti-Bullying Bill of Rights Act, student residency, civil rights, tenure, OPRA, and OPMA. In connection with these representations, she is experienced in handling matters before State and Federal courts, including the Office of Administrative Law. Ms. Dev is an experienced special education litigator and defends school districts in due process hearings from inception through trial. In addition, she has handled matters before governmental agencies, including the U.S. Office for Civil Rights and New Jersey Division on Civil Rights. Ms. Dev routinely conducts training and seminars, drafts policies and manuals, and provides strategic advice to school administrators regarding school law issues. Ms. Dev was recently recognized as one of South Jersey’s Awesome Attorneys as published by South Jersey Magazine. She is licensed to practice law in New Jersey, the District Court for the District of New Jersey and Pennsylvania.

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