At the outset, let me be clear that I believe transgender students should not be discriminated against when it comes to public accommodations. I have no problem with the Obama administration issuing guidance to schools about how the Departments of Justice and Education interpret the law regarding sex discrimination. While I don’t agree with all aspects of the DOJ/DOE documents (more on that below), I think schools benefit from knowledge of how the Departments interpret the law.
The guidance isn’t new law.* The May 13 letter says:
ED and DOJ (the Departments) have determined that this letter is significant guidance. This guidance does not add requirements to applicable law, but provides information and examples to inform recipients about how the Departments evaluate whether covered entities are complying with their legal obligations.
While I don’t object to equal treatment under the law for transgender students, I question the DOE/DOJ on their interpretation of how a student should be regarded as transgender. According to the DOE/DOJ, no professional assessment of the student is required.
The Departments interpret Title IX to require that when a student or the student’s parent or guardian, as appropriate, notifies the school administration that the student will assert a gender identity that differs from previous representations or records, the school will begin treating the student consistent with the student’s gender identity. Under Title IX, there is no medical diagnosis or treatment requirement that students must meet as a prerequisite to being treated consistent with their gender identity.6 Because transgender students often are unable to obtain identification documents that reflect their gender identity (e.g., due to restrictions imposed by state or local law in their place of birth or residence),7 requiring students to produce such identification documents in order to treat them consistent with their gender identity may violate Title IX when doing so has the practical effect of limiting or denying students equal access to an educational program or activity.
All that is required for schools to treat students in keeping with their asserted gender identity is a student’s word (presumably for adult students) or a parent’s word (presumably for minors).
In my experience, parents often disagree over what is best for children. What is a school to do when one parent asserts a change in gender identity and the other doesn’t? In my clinical experience, I have seen just such cases. For instance, some parents interpret gender non-conforming interests as a signal that a child’s gender identity is different than what was assigned at birth. Such interpretation may not be in the child’s interest.
Evaluating the broad spectrum of children where gender identity is an issue often requires professional assistance. Particularly when children and teens are involved, getting competent help can be key in coming up with the best course of action in keeping with professional guidelines. To me, it makes sense for schools to require a supportive statement from a treating physician and mental health professional.
What is the basis for the DOE/DOJ claim?
As an authority (footnote #6) for the contention that schools can’t require a diagnosis, the DOE/DOJ letter uses a case of a transgender female employed by the Army who won an EEOC complaint alleging a civil rights violation in part because she was not allowed to use a common women’s bathroom. The Army’s defense involved a concern that the complainant had not fully physically transitioned from male to female. The EEOC ruled that an employer cannot require a medical procedure in order to deny civil rights to a transgender employee.
However, in that case, the complainant had legally changed her records and was legally female. While she had not had surgical reassignment, she had made significant steps toward transition. The facts of the case involve an adult and are much different than a school where a parent or student may not have consulted a professional.
Of course, students should not have to prove full reassignment to be treated fairly, but it seems to me that schools would be within their rights to require evidence from mental health professionals and physicians that accommodation would be appropriate. Schools regularly require professionals to provide opinions on lesser matters.
When the DOE/DOJ says “there is no medical diagnosis or treatment requirement that students must meet as a prerequisite to being treated consistent with their gender identity,” I think they go beyond the facts of the case they used as a basis for their interpretation. Perhaps there are other relevant cases, but the letter doesn’t list them.
Schools should be safe for all students, including transgender students. My concern is that this guidance will hamper schools in reacting for the good of all students on a case by case basis.
*When I first posted this article, I wrote that the DOE/DOJ letter wasn’t an edict. While I still don’t see it as heavy handed as some opponents do, I will concede that some school districts may experience it negatively. Furthermore, I removed that reference because I don’t want to distract from the main point of the post.