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    August 2020

    Protect and Support Transgender Students

    Institutions’ widespread adoption of gender identity nondiscrimination policies may shape how courts interpret the duty of care owed to transgender students.

    On Feb. 22, 2017, the departments of Justice and Education issued a “Dear Colleague” letter (DCL) to rescind prior guidance that required access to sex-segregated facilities based on gender identity rather than birth sex. The departments now defer to individual schools and states to decide whether to provide access to restrooms, housing, and locker rooms in accordance with a person’s gender identity.

    Significantly, current guidance does not negate all Title IX protections for transgender students. In fact, the letter cautions that “all schools must ensure that students, including L.G.B.T. students, are able to learn and thrive in a safe environment.”

    The widespread adoption by K-12 schools, colleges, and universities of gender identity nondiscrimination policies may shape a court’s interpretation of the duty of care owed to transgender students. Your institution should consult with local counsel to understand your jurisdiction’s stance on gender identity nondiscrimination and access to facilities. Also consider the personal impact of not providing equal access to facilities based on a person’s gender identity. Studies have shown a link between the denial of access to bathrooms and housing to an increased risk for suicidal thoughts in transgender populations.

    If your institution decides to protect and support transgender students, consider taking action in the following areas:

    Let Students Change Records

    When possible, allow students to change institution records to reflect their self-identified gender, not their birth sex.

    Educate the campus community — especially staff charged with changing campus records — about the alteration process and its significance to transgender students. For example, Tulane University provides an overview of transgender rights and resources, including an explanation of how to change a student’s name and gender on official records. Even if a student’s records or identification documents indicate a different sex, treat students consistent with their gender identity. 

    Protect transgender student records. Take reasonable steps to protect students’ privacy related to their transgender status, including their birth name or sex assigned at birth. 

    Offer Student Housing

    Provide transgender students the option to live in campus housing associated with their self-identified gender.

    Your institution also can offer gender-neutral housing, such as residence halls, floors, or suites, but it should not require transgender individuals to exclusively use gender-neutral options if it also offers sex-segregated housing. Additionally, do not require transgender students to use segregated housing, such as a single-room residence.

    Change Restrooms Requirements

    Let transgender students to use restrooms consistent with their self-identified gender. Although your institution may offer gender-neutral bathroom facilities, don’t mandate transgender individuals use of them if other students are not required to do so. 

    Allow Locker Room Access

    Permit access to locker rooms based on a transgender person’s gender identity. If possible, provide spaces for personal privacy in locker rooms, such as those available in restrooms, to minimize the potential for embarrassment, harassment, or other harm. 

    Review Athletics Policies

    Intercollegiate athletics: Review and follow the policies of your institution’s athletic organization — the NCAA, NAIA, or NJCAA — regarding transgender student-athlete participation. For example, in its “Policy on Transgender Student-Athlete Participation,” the NCAA tries to balance inclusion with competitive fairness by imposing hormone requirements on transgender athletes wishing to compete as their identified gender.

    Interscholastic (K-12) and intramural: Title IX does not prohibit age-appropriate, tailored requirements based on sound, current, and research-based medical knowledge about the impact of the students’ participation on the competitive fairness or physical safety of the sport. Determine whether your institution’s interscholastic or intramural athletic programs emphasize participation by all students or are sex-segregated and focus primarily on competition. If the latter, participation may need to follow biological distinctions to promote competitive fairness and safety; base any such requirements on sound medical research. However, if the program is mixed gender, let transgender students participate in accordance with their self-identity.

    Additional Resources

    Department of Education, Office for Civil Rights, and United States Department of Justice, Civil Rights Division: Dear Colleague Letter

    Campus Pride: Colleges with Nondiscrimination Policies

    NCAA Inclusion of Transgender Student-Athletes

    Tulane University: Trans @ TU

    By Alyssa Keehan, JD, CPCU, ARM, director of risk research


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