Federal Agencies to Schools: No Restrictions on Transgender Restroom Access

On Friday, May 13, 2016, the United States Department of Education and Department of Justice released joint guidance to schools explaining how federal law prohibiting sex discrimination affects schools' obligations toward transgender students.  

In a "Dear Colleague" letter to school districts, the Department of Education maintains that requiring transgender students to use same-sex facilities violates Title IX, the 1972 law that prohibits discrimination based on sex.

"Schools across the country strive to create and sustain inclusive, supportive, safe, and nondiscriminatory communities for all students. In recent years, we have received an increasing number of questions from parents, teachers, principals, and school superintendents about civil rights protections for transgender students. Title IX of the Education Amendments of 1972 (Title IX) and its implementing regulations prohibit sex discrimination in educational programs and activities operated by recipients of Federal financial assistance. This prohibition encompasses discrimination based on a student’s gender identity, including discrimination based on a student’s transgender status," said the "Dear Colleague" letter.  

The letter also lists obligations that schools have to transgender students. However, it should be noted that civil rights guidance from the agencies does not carry the force of law, but it serves as a warning of possible enforcement actions, including loss of federal funding, for schools that run afoul of the agencies' interpretation.

Among the directions included in the guidance:

  • Educators must respond quickly to harassment, "including harassment based on a student's actual or perceived gender identity, transgender status, or gender transition;"
  • Schools should honor students' gender identity, even if it differs from the biological sex listed on their educational records;
  • Schools must allow transgender students to participate in and access sex-segregated activities, facilities, and classes consistent with their gender identity; and
  • Educators must keep students' transgender status private unless they chose to disclose it to their peers.

"The Departments interpret Title IX to require that when a student or the student's parent or guardian, as appropriate, notifies the school administration that the student will assert a gender identity that differs from previous representations or records, the school will begin treating the student consistent with the student's gender identity," the guidance says. "Under Title IX, there is no medical diagnosis or treatment requirement that students must meet as a prerequisite to being treated consistent with their gender identity. Because transgender students often are unable to obtain identification documents that reflect their gender identity (e.g., due to restrictions imposed by state or local law in their place of birth or residence), requiring students to produce such identification documents in order to treat them consistent with their gender identity may violate Title IX when doing so has the practical effect of limiting or denying students equal access to an educational program or activity."

The entire "Dear Colleague" letter can be found here.