The U.S. Departments of Education and Justice released joint guidance today entitled Dear Colleague Letter on Transgender Students. This guidance is provided pursuant to the DOE and DOJ’s enforcement authority under Title IX, and is designed to assist educators with information needed to ensure that transgender students can attend school in an environment free from discrimination based on sex.  The guidance explains that when students or their parents, as appropriate, notify a school that a student is transgender, the school must treat the student consistent with the student’s gender identity.  According to the guidance, a school may not require transgender students to have a medical diagnosis, undergo any medical treatment, or produce a birth certificate or other identification document before treating them consistent with their gender identity.  The guidance states that a school that treats a transgender student differently from the way it treats other students of the same gender identity is in violation of Federal laws prohibiting sex discrimination.

The guidance provides information for schools pertaining to the Departments’ interpretation regarding schools’ obligations to:

• Respond promptly and effectively to sex-based harassment of all students, including harassment based on a student’s actual or perceived gender identity, transgender status, or gender transition;
• Treat students consistent with their gender identity even if their school records or identification documents indicate a different sex;
• Allow students to participate in sex-segregated activities and access sex-segregated facilities consistent with their gender identity; and
• Protect students’ privacy related to their transgender status under Title IX and the Family Educational Rights and Privacy Act.

In addition to the Departments’ joint Title IX guidance, the Department of Education’s Office of Elementary and Secondary Education also released Examples of Policies and Emerging Practices for Supporting Transgender Students, a compilation of policies and practices that schools across the country are already using to support transgender students.  The document includes questions and answers on topics such as school records, privacy, and terminology, sharing samples from district across the country.

In light of the release of the guidance and related media coverage, we anticipate questions from stakeholders regarding transgender students and discrimination issues, as well heightened scrutiny from OCR and the DOJ related to complaints of discrimination raised by transgender students.  In addition to the recent guidance from the federal government, Connecticut public schools should also be sure to review the Connecticut Safe School Coalition’s Guidelines for Connecticut Schools to Comply with Gender Identity and Expression Non-Discrimination laws, which provides guidance on Connecticut’s Public Act No. 11-55, prohibiting discrimination on the basis of gender identity or expression in all areas and contexts in which the laws already prohibit discrimination on the basis of sex.