Continuing “Education” – Developing Law and Guidance on Transgender Discrimination Against Students and Employees

By D|K’s School and Higher Education Law Team

The legal rights of individuals who identify as “transgender” and “gender nonconforming” are at the forefront of our national attention. As this area of the law continues to develop, it is critical that school districts and employers review policies and procedures to understand the various compliance issues based upon the current guidance from the federal government agencies and courts.

On Friday, May 13, 2016, the U.S. Department of Justice and Department of Education issued joint guidance in a Dear Colleague Letter directed to school districts, colleges and universities receiving federal money, which they declared as “significant guidance.” The Letter states that both agencies treat a student’s gender identity as the student’s sex and that schools may not discriminate based on a student’s sex, including a student’s transgender status, under Title IX of the Education Amendments Act of 1972. The Letter goes on to discuss a school’s obligations under Title IX, which includes treating a student consistent with the student’s gender identity when a student or the student’s parent or guardian notifies school administration that the student will assert a gender identity different from previous representations or records. This notification also triggers an obligation to the schools under the Federal Educational Rights and Privacy Act (FERPA) to take reasonable steps to protect students’ privacy related to their transgender status, including their birth name or sex assigned at birth, and to only disclose this information to school personnel with a legitimate educational interest.

The “significant guidance” declaration is notice to the public entities that the agencies will be seeking enforcement through complaint procedures and compliance audits. The various public announcements related to the May 13, 2016 Letter also signals that the federal agencies will be devoting resources to enforcement efforts.

Courts are also weighing in on transgender discrimination disputes. Just a few weeks ago, the U.S. Court of Appeals for the Fourth Circuit deferred to the U.S. Department of Education’s regulations interpreting Title IX along with its Office of Civil Rights’ guidance letter (dated January 7, 2015) that schools generally must treat transgender students consistent with their gender identity. In G.G. v. Gloucester County School Board, the Fourth Circuit ruled that prohibiting bathroom access based on gender identity by transgender individuals may constitute discrimination on the basis of sex.

The U.S. Department of Education 2015 guidance, which is referenced in the May 13, 2016 Letter, does recognize that there are complicated interests of safety and privacy along with the access issues. Schools will need to continue taking measures to prevent bullying for all students, and particularly in circumstances involving bathroom and locker room access. Schools are advised to review their supervision procedures surrounding locker rooms and bathroom use to reconcile the various competing interests presented. Wisconsin school districts are within the jurisdiction of the 7th Circuit Federal Court of Appeals. As such, the Fourth Circuit Court of Appeals decision is not binding on Wisconsin school districts. However, in the event of a complaint or compliance audit, school districts should be aware that the U.S. Department of Education Office of Civil Rights and the Department of Justice will be relying on the legal interpretation of Title IX contained in its May 13, 2016, Letter, and rationale found in the 4th Circuit decision.

Other federal agencies also continue to weigh in on the issue of transgender rights. The Equal Employment Opportunity Commission (EEOC) issued a Fact Sheet discussing EEOC rulings stating that discrimination based on transgender status is sex discrimination and denying equal access to a common restroom based on an employee’s gender identity is sex discrimination. The Occupational Safety and Health Administration (OSHA) has issued a Best Practices document that states: “Core Principle: All employees, including transgender employees, should have access to restrooms that correspond to gender identity.”

Not all legislators are in agreement with the agency guidance as demonstrated by the current dispute between the U.S. Department of Justice and the State of North Carolina over the State’s recent transgender bathroom bill. The Department of Justice issued a letter to the Governor of North Carolina stating that complying and implementing North Carolina’s recently passed House Bill 2 (H.B. 2), which requires transgender individuals to use bathrooms consistent with their biological sex on their birth certificate, is discriminatory and, therefore, in violation of Titles VII and IX along with the Violence Against Women Act. The DOJ’s position set forth in the May 13, 2016 letter explains that millions of federal funding dollars are at risk for the State of North Carolina and its educational institutions.

In Wisconsin, the Legislature has not yet adopted legislation regarding transgender bathroom issues. However, there are indications that the Legislature may take up a re-introduced transgender bathroom bill sometime this year. If that occurs, similar to North Carolina, Wisconsin school districts will be in a position where they are subject to conflicting state law and federal agencies’ guidance. In such a case, any North Carolina court decision will also be a factor.

Employers, and school districts as employers, should also take note of the federal government’s position with respect to transgender discrimination equating to sex discrimination in violation of Title VII of the Civil Rights Act of 1964. This interpretation now opens another window for employer liability as a result of an Employer’s discriminatory behavior against transgender individuals that violates Title VII.

Given the continuing updates to this area of the law, the attorneys at Davis & Kuelthau, s.c. are prepared to assist school district officials and employers to navigate conflicting laws and guidance, as well as assist with practical solutions in the review and revision of policies, procedures and implementation. Answering questions about compliance with the new laws and interpretations is challenging, but the Davis & Kuelthau team is prepared to help find solutions.

If you have any questions, please contact your Davis & Kuelthau, s.c. attorney.