For many years, the most difficult problems colleges and universities had to face concerning student housing involved roommate disputes, housing availability and student pranks. Now, housing coordinators have to face the needs of transgender students for housing accommodations while having to juggle limited housing options. Compounding the problem is an absence of regulations and case law governing the rights of transgender students. However, colleges and universities that fail to take a proactive approach and adopt their own guidelines and policies run the risk of litigation or a United States Department of Education (DOE) investigation.
What Does Transgender Include?
The term “transgender” is widely misunderstood, probably because it includes various characteristics. Generally, transgender encompasses pre-operative, post-operative and non-operative transsexuals, and anyone whose gender identity is not easily defined within the usual expectations of masculinity or femininity. For those who consider themselves transgender, gender identity is more a matter of internal perception and is not dependent upon strict physical attributes. Therefore, personal choice largely controls transgender identity.
Transgender rights for students has recently been a news topic. In May of 2012, the United States Department of Justice, Civil Rights Division, sent a letter to the University of Arkansas - Fort Smith, in which it warned the school that it would open an investigation should it fail to address the restroom needs of a female transgender student. (The term “female transgender” refers to an individual born a biological male that is or has transgendered or considers herself a female. A "male transgender” would be a female to male identification.) The University of Arkansas required the student to refrain from using female only facilities and to use gender neutral facilities. Also, in March of 2011, a male transgender student at Miami University of Ohio brought suit alleging that his rights under Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et. seq., were violated when the university barred him from serving as a residential advisor in a men’s dormitory.
The Legal Framework
Unfortunately, the law is not fully developed as to the scope of the housing and facilities rights of transgender students. The DOE has not published regulations specifically directed to transgender student housing or facilities. Instead, the DOE has stated that harassment or discrimination against transgender students falls under Title IX’s prohibition against discrimination on the basis of sex. See, October 26, 2010, DOE “Dear Colleague Letter” Harassment and Bullying” at p. 8.
A search of reported cases does not reveal any involving the housing of transgender students.
How Have Colleges Responded?
A small but growing number of institutions have established policies and guidelines for transgender student housing. However, the vast majority of schools have not done so, or have addressed issues privately. Doing nothing or acting reactively is probably an unwise choice as transgender students assert their rights with DOE support.
For schools with transgender housing policies, most use student preferences and self-identification as the basis for accommodations. Some look to the identification of students, as male or female, on state sanctioned identification cards such as drivers’ licenses and birth certificates. If a state allows for and has changed the student’s gender classification, some schools then treat the student under his/her classification even if the physical changes necessary to complete a gender reorientation have not been fully effectuated.
Other institutions look to student self-identification as male or female, or both, or gender neutral. (Gender neutral usually means no gender preference nor specific identification.) They allow students to choose the housing preference they wish, subject to available resources. This may include gender neutral, male only, female only or opposite gender only. These choices require compatible roommates who have also opted into the housing accommodations. Some schools limit the choice to upper class students while others include freshmen or sophomores.
A small number of schools that provide for student choice restrict the available housing to a segregated floor or area dedicated to LGBT (Lesbian, Gay, Bisexual and Transgender) students.
Others look at the issue on a case by case basis without specific rules or guidelines, and simply state that transgender students will be accommodated to the extent of available resources.
The adoption of written policies and guidelines that allow for student choices that include gender neutral, opposite gender housing or other choices, subject to available resources, should provide for Title IX compliance. However, the specific needs of each institution should be carefully weighed before policies are adopted. Given the uncertain and evolving legal framework, attention must be paid to legal developments.©2013 Greenberg Traurig, LLP. All rights reserved.