BY BTL STAFF
WASHINGTON D.C. – The U.S. Departments of Justice and Education released joint guidance May 13 to help provide educators the information they need to ensure that all students, including transgender students, can attend school in an environment free from discrimination based on sex.
Recently, here in Michigan and across the country, schools have asked questions about transgender students and how to best ensure these students, and cisgender students, can all enjoy a safe and discrimination-free environment.
"Today's action will also have a significant impact on the anti-trans bathroom inspection bill that has been proposed here in Michigan by State Sen. Tom Casperson. Today's federal guidance underscores what Equality Michigan has been saying from day one: Casperson's proposal violates Title IX and would endanger transgender students across Michigan," White said.
Under Title IX of the Education Amendments of 1972, schools receiving federal money may not discriminate based on a student's sex, including a student's transgender status. The guidance makes clear that both federal agencies treat a student's gender identity as the student's sex for purposes of enforcing Title IX.
"These federal guidelines will provide school districts across the country with sorely needed and frequently requested guidance about how they can ensure that transgender students have access to the safe learning environments and the equal educational opportunities they are entitled to under Title IX. The Obama administration should be commended for taking bold and decisive action to protect transgender students across the country from harassment and discrimination at school," said Equality Michigan Executive Director Stephanie White.
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. 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 also explains 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.
At the same time, the guidance makes clear that schools can provide additional privacy options to any student for any reason. The guidance does not require any student to use shared bathrooms or changing spaces, when, for example, there are other appropriate options available; and schools can also take steps to increase privacy within shared facilities.
"There is no room in our schools for discrimination of any kind, including discrimination against transgender students on the basis of their sex," said Attorney General Loretta E. Lynch. "This guidance gives administrators, teachers and parents the tools they need to protect transgender students from peer harassment and to identify and address unjust school policies. I look forward to continuing our work with the Department of Education — and with schools across the country — to create classroom environments that are safe, nurturing, and inclusive for all of our young people."
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 20-page compilation of policies and practices that schools across the country are already using to support transgender students. The document shares some common questions on topics such as school records, privacy and terminology and then explains how some state and school district policies have answered these questions, which may be useful for other states and school districts that are considering these issues. The Department of Education does not endorse any particular policy but offers examples from actual policies to help educators develop policies and practices for their own schools.
Many parents, schools and districts in Michigan have raised questions about this area of civil rights law. The Michigan State Board of Education is currently considering a set of proposed guidelines for LGBT students that is similar to that which the DOJ and ED authored. The State Board of Education held its final hearing on the guidelines May 10 and is expected to make a decision to either adopt or dismiss the proposed voluntary guidelines sometime in August.
Some legislators in the state are unhappy with the State Board of Education guidelines and have threatened legislation similar to the bathroom policy passed by North Carolina in late March. State Sen. Tom Casperson, R-Escanaba, announced his plans to introduce an anti-trans bathroom inspection bill in late March following the introduction of the state Board of Education LGBT K-12 guidelines.
The guidelines include many helpful policies and suggestions for K-12 schools and would make schools receiving federal funding become compliant to Title IX policy restrictions.
To read the full federal guidance visit http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201605-title-ix-transgender.pdf.
