By: Paul S. Thaler and Christopher D. Carusone
Last Friday, May 13, 2016, the U.S. Departments of Education and Justice jointly issued a “Dear Colleague” letter containing “significant guidance” summarizing and explaining the views of the Department of Education and Department of Justice on the applicability of Title IX to transgender students. The letter is accompanied by a Department of Education document titled “Examples of Policies and Emerging Practices for Supporting Transgender Students.”
The guidance documents make clear that the Departments will treat gender identity as functionally equivalent to the student’s sex for purposes of Title IX compliance. Schools must treat a student’s gender identity as that student’s sex for purposes of interpreting and implementing the regulations found in Title IX. In short, schools receiving federal funds “must not treat a transgender student differently from the way it treats other students of the same gender identity.”
In addressing the growing concern among some communities, the Departments require gender identity protection from harassment “even in circumstances in which other students, parents, or community members raise objections or concerns. As is consistently recognized in civil rights cases, the desire to accommodate others’ discomfort cannot justify a policy that singles out and disadvantages a particular class of students.”
The Department of Education asserts that this guidance does not constitute new law but simply offers “information and examples” to help covered schools comply with the law. However, the guidance immediately attracted extensive media attention and clearly indicates that covered schools should pay attention to what will likely be a contentious area of regulatory and investigative focus.
Cohen Seglias Pallas Greenhall & Furman PC and Day Pitney LLP recently announced the launch of their joint Title IX Investigations Initiative. This initiative will allow the firms to provide existing and new clients fuller services in the wake of a growing number of Title IX investigations. The initiative will encompass regulatory inquiries and investigations likely to be generated by increased attention to Title IX issues in the context of transgender students.