The U.S. Departments of Justice and Education issued a joint Dear Colleague Letter on May 13, 2016, clarifying that Title IX prohibits discrimination based on gender identity, including transgender status. The guidance states that an educational institution's failure to treat students in a manner consistent with their gender identity may create or contribute to a hostile environment in violation of Title IX. Additionally, the government underscores that harassment based on gender identity, transgender status, or gender transition is harassment based on sex and covered by Title IX.

The Dear Colleague Letter highlights the applicability of Title IX to:

Requests that school employees use pronouns and names consistent with a transgender student's gender identity;

Participation of transgender students in sex-segregated activities and facilities, including restrooms and locker rooms, athletics, and housing and overnight accommodations; and

Protection of student privacy and records related to transgender status, including the intersection of the Family Educational Rights and Privacy Act (FERPA) regarding the nonconsensual disclosure of a transgender student's birth name or sex assigned at birth.

The Department of Education's Office of Elementary and Secondary Education also released a compilation of policies and emerging practices for supporting transgender students in schools.

The government’s release of this Dear Colleague Letter, which is considered to be a significant guidance document, signals its willingness to take enforcement action to ensure compliance with Title IX, including with regard to transgender students. Educational institutions should review existing policies, procedures, and practices that affect the participation of transgender students in programs and activities to ensure compliance with the government's latest guidance in this area.

Attorneys in Ballard Spahr’s Higher Education Group regularly advise clients on Title IX compliance and policies and procedures regarding transgender students in educational institutions.

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