On Friday, May 13, the Department of Education (ED) and the Department of Justice (DOJ) released “significant guidance” on how Title IX of the Education Amendments of 1972 (Title IX) applies to transgender students. According to its terms, the guidance does not add to or amend existing laws or regulations, but rather “provides information and examples to inform recipients about how the Departments evaluate whether covered entities are complying with their legal obligations.” The guidance as worded is aimed primarily at elementary and secondary schools, with few direct references to colleges. However, the principles laid out in the document apply to all institutions that are subject to Title IX.
In general, the departments state that Title IX requires that transgender students must not be treated differently than other students with the same gender identity. Gender identity is defined as “an individual’s internal sense of gender. A person’s gender identity may be different from or the same as the person’s sex assigned at birth.” The guidance then proceeds to spell out how this general rule is applied to several particular situations, such as bathrooms and locker rooms, athletic teams, and housing. In most situations, with the exception of athletic teams, the guidance states that transgender students must be treated the same as others with the same gender identity. Providing separate facilities for transgender students is a violation of Title IX. Schools may make such facilities available to all students, however.
The guidance also spells out how the Family Educational Records and Privacy Act (FERPA) applies to transgender students, noting that a transgender student’s birth name and sex assigned at birth are considered personally identifiable information and relevant FERPA protections apply. The guidance stresses FERPA’s requirement that such information should not be disclosed to school personnel unless they have a legitimate educational interest in the information.
AACC will provide further analysis of this guidance as it becomes available.