The Letter ... DOE and DOJ Warn School Districts Regarding Transgender Students
On May 13, 2016, the U.S. Department of Education and U.S. Department of Justice issued a joint "Dear Colleague" Letter, summarizing what the Departments deem to be a school district's obligations to transgender students under Title IX. Both the DOE and the DOJ interpret Title IX's prohibition against "sex discrimination" to encompass discrimination based on a student's gender identity and transgender status. To comply with the Letter's guidance, a school must not treat a transgender student differently from the way it treats other students of the same gender identity. The DOE's and DOJ's interpretation of Title IX is consistent with agency treatment of gender identity under both Title VII and Title IX, but it is important to note that the Seventh Circuit Court of Appeals (of which Wisconsin is a part) has not yet provided definitive guidance relating to the interpretation of these federal laws.
The Letter was sent to every public school district in the nation and provides a variety of compliance guidelines to ensure equal treatment of transgender students. The below chart summarizes the guidance provided and recommendations for compliance:
DOE and DOJ Guidance is Consistent with Legal Trends
The Letter is consistent with a recent decision from the Fourth Circuit Court of Appeals, G.G. v. Gloucester County Sch. Bd., No. 15-2056, 2015 WL 1567467 (4th Cir. Apr. 19, 2019), whereby the court found that Title IX extends to protect the rights of transgender students to use the bathroom that corresponds with the student's gender identity. The DOE Office of Civil Rights in Chicago – the regional office encompassing Wisconsin and having jurisdiction over all Title IX complaints filed against Wisconsin schools with the DOE – has opined that school districts must provide full locker room access to transgender students. See In re Township High Sch. Dist. 211, Illinois, OCR Case No. 05-14-1055 (Dec. 2, 2015). There, OCR found that a district must provide a transgender student with unfettered access to the facilities of the gender in which the student identifies in order to comply with Title IX's mandate against sex discrimination.
Further, the guidance issued is consistent with how several courts across the nation have treated gender identity and transgender employee discrimination cases under Title VII.
Note that the Letter does not add requirements to applicable law, nor is it considered the law; rather the DOE and DOJ deem the letter to be "significant guidance," which is important considering that the DOE's Office of Civil Rights is responsible for investigating complaints of Title IX violations, and enforcing compliance with the statute, which may include restricting or removing a school district's access to federal funding. The Letter signals the DOE's willingness to take enforcement action to ensure compliance with Title IX, including with regard to transgender students. Given the DOJ's and DOE's stances that Title IX prohibits discrimination based on gender identity and transgender status, school districts must be mindful of the compliance guidelines set forth in the Letter or risk subjecting themselves to an OCR complaint.
The Letter was accompanied by a separate document from the DOE titled Examples of Policies and Emerging Practices for Supporting Transgender Students. The document identifies major areas of concern, and provides examples of policies from across the nation (including Wisconsin's Shorewood School District) that are intended to ensure transgender students enjoy a supportive and nondiscriminatory school environment. School districts may wish to utilize these examples in developing policies and procedures for use in their districts.
As of Wednesday, May 25, the State of Wisconsin has joined 10 other states in suing the federal government over the DOE's and DOJ's guidance. The state has indicated that the guidance conflicts with both federal and state law in that Wisconsin law does not prohibit discrimination based on gender identity. Additionally, Wisconsin legislators have indicated their intent to reintroduce a bathroom bill that would require school boards to designate restrooms and locker rooms for use by one gender exclusively, with "reasonable accommodations" for a transgender student to use a single-occupancy changing room or restroom. This area of the law has become especially volatile in recent months and that trend looks to continue through the rest of 2016. We will continue to keep you apprised as new developments unfold.