Dear Colleague Letter: Transgender Students

Abstract

This chapter discusses the attempt by Catherine E. Lhamon and Vanita Gupta to transform Title IX into a ban against gender identity discrimination by issuing a 2016 Transgender Guidance without congressional oversight or public input. The letter explains how the US Department of Education (ED) and the US Department of Justice (DOJ) evaluate a school's compliance with some obligations. A school's Title IX obligation to ensure nondiscrimination on the basis of sex requires schools to provide transgender students equal access to educational programs and activities even in circumstances in which other students, parents, or community members raise objections or concerns. Nonconsensual disclosure of personally identifiable information (PII), such as a student's birth name or sex assigned at birth, could be harmful to or invade the privacy of transgender students and may also violate the Family Educational Rights and Privacy Act (FERPA). A school may maintain records with this information, but such records should be kept confidential.

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