By Abby S. Busler
On June 6, 2017, the Office for Civil Rights (OCR) released internal guidance on transgender student complaints. The memorandum eliminates OCR reliance on the May 2016 Dear Colleague Letter. OCR will no longer process complaints based solely on the basis of transgender students being denied facility use, such as restrooms or locker rooms. However, OCR will apply Title IX and its implementing regulations as interpreted by the federal courts in evaluating a sex discrimination complaint.
OCR provided a list of the allegations over which it will have continuing jurisdiction:
- Failure to promptly and equitably resolve a transgender student’s complaint of sex discrimination.
- Failure to assess whether sexual harassment or gender-based harassment of a transgender student created a hostile environment.
- Failure to take steps reasonably calculated to address sexual or gender-based harassment that creates a hostile environment.
- Retaliation against a transgender student or other individuals who have raised concerns about possible sex discrimination.
- Discrimination based on sex stereotyping, as defined as different treatment based on a student’s failure to conform to stereotyped notions of masculinity or femininity.
OCR advises that it will open investigations following any allegations of the above listed types of discrimination, so each school district should be aware of the new internal guidance. OCR will evaluate each allegation of a complaint separately, and an investigation may proceed on one allegation while dismissing other allegations. For example, if a complaint alleged different treatment based on sex stereotyping, and a denial of access to restrooms based on gender identity, OCR may dismiss the latter, and proceed with the first allegation. OCR requires that sufficient information exists before proceeding and may split/or dismiss partial claims. As a result of this guidance, school districts should evaluate and carefully process complaints brought by transgender students to address the types of issues identified above by OCR.
Whitaker v. Kenosha Unified School District
The OCR processing changes came one week after a major case on the same topic. A Seventh Circuit Court of Appeals decision reaffirmed protection for transgender students under the theory of sex stereotyping in Whitaker v. Kenosha Unified School District, No. 16-3522 (May 30, 2017). The court found sufficient evidence of a sex stereotyping claim and granted a preliminary injunction for the student, which is an assessment by the Court of potential legal success on the merits at the final injunction hearing.
The Seventh Circuit, which encompasses Wisconsin, is the first appeals court to recognize transgender student rights in choosing their own gender identity for restroom use under both Title IX and the Constitution through the grant of the preliminary injunction. The Court reiterated that school districts are not allowed to treat students differently if a student fails to conform to the sex-based stereotypes associated with their assigned sex at birth.
OCR continues to investigate student complaints, and the new investigation procedures will take effect in all current complaints and newly filed complaints. In light of both the new OCR procedures and the ongoing court cases involving these issues, staff training is critical.
The following are frequently used “terms of art” and examples provided as a guide for discrimination policy implementation. Districts should consider updating their anti-discrimination policy and/or implementing guidelines to address these areas. It is also recommended that districts train staff to focus on understanding the following terms to aid in the implementation of nondiscrimination policies.
Sex Stereotyping:
Sex stereotyping involves the generalization of a person’s abilities and limitations based on tendencies of that person’s sex. For example, a school district discriminates against a student based on sex stereotyping if the school district does not allow a female student the choice to wear a tuxedo to prom. Sex stereotype discrimination exists if, for example, the school district only allowed females to wear dresses, and males to wear tuxedos/suits to a formal event.
Sex Discrimination:
Sex discrimination involves treating someone unfavorably because of that person’s sex. For example, a school district discriminates against a transgender student on the basis of sex if an employee fails or refuses to use a transgender student’s preferred name or pronoun when the school uses preferred names for gender-conforming students or when the refusal is motivated by animus toward people who do not conform to sex stereotypes.
Hostile Environment:
A hostile work environment is created when a student or employee feels uncomfortable or scared to be in his or her work space or classroom due to offensive behavior, intimidation, or abuse by a supervisor or staff member. For example, a school district creates a hostile environment if a student is discriminated against based on gender stereotypes. This treatment under gender stereotypes includes treating a student differently based on a preconceived notion of traditional masculinity, and it can create a hostile environment if the school district fails to remedy the issue. If the student is subject to different treatment based on sex, it can create a hostile environment.
Retaliation:
Retaliation occurs if a student or employee is treated differently and negatively after filing a complaint or participating and cooperating in a complaint. For example, a student may be retaliated against if he/she files a complaint regarding a hostile environment based on gender-based harassment. Retaliation may occur if the student’s grades are lowered due to filing a complaint. An employee may suffer retaliation if the employee receives negative evaluations or disproportionate additional job tasks after filing a complaint or participating in a complaint investigation.
Please contact your Davis|Kuelthau, s.c. attorney, the author noted above, or the related practice group chair linked here if you have any questions.