Transgender Student Issues - OCR & Federal Liability
A frequent question school districts are posing is how to appropriately educate students who are transgendered. Since 2010, the United States Department of Education's Office of Civil Rights ("OCR") has included transgender students in the class of individuals entitled to Title IX protection. In 2011, OCR issued a Dear Colleague Letter ("DCL") on student-on-student harassment and sexual violence. After responding to requests for technical assistance, OCR last spring issued a supporting "significant guidance document" titled Questions and Answers on Title IX and Sexual Violence, after determining that elementary and secondary schools and postsecondary institutions would benefit from additional guidance concerning their obligations under Title IX to address sexual violence as a form of sexual harassment. In December, outgoing Attorney General Eric Holder said in a memo from the Department of Justice's Office of Public Affairs that the DOJ will take the position in litigation that discrimination on the basis of gender identity is prohibited under Title VII of the Civil Rights Act of 1964, which bars discrimination on the basis of sex, further moving the national policy towards protection of transgender individuals.
In the DCL and Q&A guidance, OCR recommends regular training for all individuals in the school, conducted based on the particular circumstances of each school. It reminds schools that all persons involved in implementing a school's grievance procedures must have training or experience in handling sexual violence complaints and in the operation of the school's grievance procedures, and then lists the types of information to include in this training (Question J-3). The Q&A's carefully crafted questions and answers attempt to draw a line between what a school is legally obligated to do and what a school should do according to OCR. OCR, in its investigatory role relating to complaints, will look to the types of factors considered in what schools should be doing to determine compliance. Schools with particular circumstances calling for education in these areas are wise to review the many detailed "suggestions" in order to know how to assist these students and how to defend their District's actions in any potential OCR investigations relating to sexual violence, bullying, or harassment.
There is considerable debate in the legal community on whether OCR has overreached its authority in including transgender students in the protected class of individuals under Title IX. Courts around the country have historically failed to extend this protection to transgender individuals. Courts further adhere to the much higher Davis "deliberate indifference" standard for liability under Title IX (which includes monetary damages). This standard requires a plaintiff to prove that school officials had actual knowledge of the harassment or bullying, and that the harassment or bullying was so severe, pervasive, and objectively offensive that it effectively barred the victim from access to his education. Compare that standard to OCR's investigation standard, where a Title IX violation will occur where: (1) school officials knew or should have known about the bullying or harassment; (2) the bullying or harassment was severe, pervasive or persistent; and (3) the harassment or bullying interferes with or limits the students participation in educational opportunities.
Courts, referring to the Davis standard, have said: "Judges make poor vice principals, and as Davis instructs: court should refrain from second-guessing the disciplinary decision made by school administrators . . .[s]chool administrators will continue to enjoy the flexibility they require so long as federal funding recipients are deemed 'deliberately indifferent' to acts of student-on-student harassment only where the recipient's response to the harassment or lack thereof is clearly unreasonable in light of the known circumstances." Estate of Lance v. Lewisville Independent School District, 743 F. 3d 982 (5th Cir. 2014) (emphasis added).
The issue can be fully understood when considered in the sports context. Schools seem to have developed successful methods for supporting a transgender student in the classroom, with some creative (and legally sound) bathroom arrangements. But schools have faced immense pressure when trying to handle locker room and sports situations. States' sports associations around the country have been adopting guidelines that would allow a student to participate in school sports based on gender identity or gender expression. A recent Minnesota proposal led to what activists called "blatantly transphobic" advertisements in the state and harsh opposition to the policy. In most of these situations, including in states where legislation has passed protecting transgender individuals, the vehemence of the protesting failed to align with the actual outcome of any sort of protection or privilege granted to these individuals - in other words, students went on with their lives - and districts, aware of the transgender individuals - worked to assure that these students knew what to do if they didn't feel safe.
OCR's reporting requirements and costs relating to investigation and/or a settlement arrangement can be extensive. A good starting place for any district recognizing issues in this area and/or for assessing potential liability for bullying or harassment of any kind is to assess whether students are aware of grievance procedures and how and when to appropriately utilize those. Then districts can work with students and families in the particular situations that require more thought and design. While the courts will likely maintain a very high bar in legal claims under Title IX, the political and personally sensitive nature of these endeavors make this an area where any guidance is helpful. Solutions that support all students exist and can be designed to safeguard against OCR and legal claims.