The Department of Education announced this week that it has entered into a resolution agreement with the Downey Unified School District. The Department had been investigating a complaint filed on behalf of a transgender student who has consistently asserted aspects of her female gender identity since enrolling as a kindergartner in the Downey public schools. The complaint alleged that while she was an elementary student, the student was the subject of discrimination on the basis of gender identity when school officials disciplined her for wearing makeup when other female students were allowed to do so. As part of her punishment, she had to write a letter of apology for making male students uncomfortable. She was also allegedly the victim of verbal harassment including being called homophobic and sexist slurs by other students on the bus, to which school officials failed to adequately respond. After she fully transitioned to female during her fifth grade year, school officials refused to use her female name. While some things improved when the student graduated to a middle school that respected the students gender identity, name and pronouns, the student was still subject to peer harassment and the complaint suggested some school-wide measures that were not taken to try foster a more tolerant and inclusive climate. Based on her experiences in elementary school and middle school, the student wanted assurance going forward that high school administrators and faculty will be responsive to harassment, respectful of her gender identity and expression, and willing to treat her just like any other girl.
The resolution agreement addresses the student's concerns for the future by requiring the school district to "continue to treat the student the same as other female students in
all respects in the education programs and activities offered by the
District, including access to sex-designated facilities for female
students." The district is prohibited from disciplining the student from "appearing in a manner that does not confirm to stereotyped notions of masculinity and femininity" and must remove all past such disciplinary notations from the student's records. Additional measures the school district will have to undertake include hiring a consultant to help the school address the climate issues giving rise to harassment, conducting mandatory training for district administrators to ensure they are responding appropriately to gender non-conformance- and gender-based harassment, and reviewing its policies to ensure that transgender students are provided every opportunity to participate in all programs "in a manner that does not discriminate based on sex, gender identity or
Like the Arcadia school district resolution, which was similar, this resolution is an important signal of a school district's obligation under Title IX to protect equal rights of transgender student. While the requirements that school districts appropriately respond to gender-non-conformance-based harassment is not a new or groundbreaking application of Title IX, other aspects of the resolution are cutting edge. In particular, the requirement to treat transgender student like any other girl with respect to sex-designated facilities is part of an emerging definition of sex discrimination that enhances Title IX's effectiveness to challenge transgender student's exclusion from the bathrooms, locker room, dormitory, or sports team that comports with their gender identity.