Monday, May 16, 2016

Some Thoughts on Friday's Dear Colleague Letter Re: Transgender Students

On Friday the Department of Education and the Department of Justice jointly released a significant guidance document in the form of a "Dear Colleague" letter that addresses schools' responsibilities under Title IX to avoid discrimination against transgender students. The central premise of the guidance letter is, "The Departments treat a student’s gender identity as the student’s sex for purposes of Title IX....This means that a school must not treat a transgender student differently from the way it treats other students of the same gender identity." Thus, transgender students must be permitted to access bathrooms, locker rooms, athletic opportunities, single-sex classes, single-sex schools, or any other sex-specific activity or requirement according to their gender identity even if their school records or other documentations say otherwise. Schools must also protect transgender students from harassment and respect their preferred names and pronouns.

Here are some of my thoughts about the Dear Colleague Letter:

The effect of guidance. A guidance document like the Dear Colleague Letter does not create new legal requirements. In fact, if you have been following the position that the Department of Education has taken in recent enforcement actions, you'll find the content of this guidance document to be familiar.  The effect of Dear Colleague Letters is to raise awareness about compliance obligations so that schools can proactively adjust their conduct to avoid such enforcement actions.

The Letter's scope. The Letter is directed at "schools" without specifying whether it meant to include or exclude institutions of higher education. In my mind, there is no legal basis for having a different definition of sex discrimination apply to K-12 than to higher education, so it is arguable that everything in the Letter applies to higher education with equal force.  Yet the Departments' failure to expressly address colleges and universities may create arguments to the contrary as well. This might be particularly controversial in the aspect of athletics, where prevailing NCAA policy imposes hormone-based requirements on transgender athletes wishing to compete according to their gender identities (though the Letter appears to endorse the policy in a footnote).

Federal government overreach? On the radio this morning I heard some state-level politicians complaining that the federal government lacks the right to regulate local schools in this manner. Indeed, the Constitution prohibits the federal government from directly regulating matters of such state/local concern, but when the federal government spends its own money, it may impose conditions on those who receive such funds. A local school district that doesn't want to comply with Title IX as interpreted by the Dear Colleague Letter is not required to do so.  All it has to do is forgo federal funding, and it has no obligation under Title IX whatsoever. On the other hand, if it agrees to accept the benefits of federal funding, it must accept the responsibilities that come with it.

Confirmation of identity. According to the Letter, all that is required to confirm a transgender student's gender identity is notification from a parent. It is appropriate that the Departments expressly denounce any specific medical diagnosis or intervention as a prerequisite for a schools' obligation to recognize the student's gender identity.  Unfortunately, however, a "parental notification" standard will leave some transgender students (those without parental support) without the right to access facilities and programs according to their gender identities -- though I understand why the Departments would not want to force schools to take sides within a divided family. Hopefully the government's express validation of transgender students' identities will help nudge society in a similar direction and likely reduce the number of unsupportive parents with time.

What about nonbinary students? A colleague of mine asked me what the Letter means for transgender students who don't identity as either male or female, and I thought I'd post my thoughts on that question here as well. Such "nonbinary" students are not expressly mentioned in the Letter, but it seems clear to me that their rights to be protected from harassment and discrimination in general are the same as transgender students whose gender identity is specifically male or female.  As for single-sex facilities and programs, however, there is not a clear answer.  Presumably such a student would be treated like a member of their birth-assigned sex that is reflected in school records, since that is schools' default mode of operation. But those students would not have access to facilities and programs for the other sex, however, since they cannot claim to have a similar gender identity to the students in that gender category. Theoretically, the Letter could have addressed the rights of nonbinary students by requiring schools to create third category for every program or facility that is segregated by sex, though the Departments likely (and reasonably) considered such an approach infeasible. But the omission of such a requirement doesn't mean schools can't try to accommodate nonbinary students as a matter of "best practice." For one, they could permit such students to use facilities or access programs that they feel most comfortable, whether that be consistent with their birth-assigned sex or the other sex category.  For another, they could eliminate unnecessary and gratuitous sex classifications (color-coded graduation robes is an example that readily comes to mind), since the fewer places in school where sex designations matter, the more inclusive the school environment is to all students regardless of gender identity.