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Investigating Transgender Student Discrimination under New Education Department Directives

By Susan D. Friedfel, Michelle E. Phillips and Marla N. Presley
  • June 21, 2017

Department of Education regional directors have been given new instructions on sex discrimination protections for transgender students under Title IX of the Education Act of 1972. Two updated, internal Office of Civil Rights (OCR) guidance documents outline changes to the appropriate scope of OCR investigations and to the Department’s interpretation of Title IX.

OCR ensures compliance by recipients of federal education funds with Title IX. Title IX prohibits discrimination on the basis of sex in any federally funded education program or activity. An entity in violation of Title IX may lose some or all of its Title IX funding.

Both internal guidance documents, which took effect immediately, indicate a substantial retreat from DOE guidance issued under the Obama Administration. The documents offer significant insight into how DOE will operate under the Trump Administration (which has been under substantial media attention over its handling of education-related issues).

Guidance on OCR Investigations

Under the Obama Administration, OCR sought to determine whether individual complaints raised systemic concerns relating to broader school or district issues. Part of this included reviewing at least three years’ worth of past complaint data.

The new internal guidance document (OCR Instructions to the Field re Scope of Complaints, June 8, 2017) states that there is no longer a mandate that certain kinds of complaints be treated differently than others as to the scope of investigation, the amount or type of data gathered, or the kind of oversight from OCR Headquarters. The internal guidance document states that “there is no longer a ‘sensitive case’ or ‘call home’ list; rather Headquarters and the Regional Offices (Regional Director) will consult regularly to determine on a case-by-case basis whether complex or problematic investigations require Headquarters review or intervention and when trends emerge that require Headquarters oversight or direction.” Further, OCR investigators are no longer required to gather three years of past complaint data; rather, they are empowered to make an individualized determination of what data is necessary to conduct their investigation.

OCR views this shift as the abandonment of the “‘one size fits all approach’ to the investigation of any category of complaints.” For example, the internal guidance makes clear that “OCR will only apply a ‘systemic’ or ‘class-action’ approach whether the individual complaint allegations themselves raise systemic or class-wide issues or the investigative team determines a systemic approach is warranted through conversations with the complainant.”

This is a significant departure from OCR’s investigation protocol under the Obama Administration. OCR, however, anticipates the new approach will allow the agency to “swiftly address compliance issues raised by individual complaint allegations, reach reasonable resolution agreements with defined, enforceable obligations placed upon recipients directly responsive to addressing the concerns raised in the individual complaint being resolved, and encourage voluntary settlement wherever possible.”

Guidance on Title IX’s Application to Transgender Students

The internal guidance document on Title IX’s application to transgender students (OCR Instructions to the Field re Complaints Involving Transgender Students, June 6, 2017) updates OCR personnel on Department of Education actions that retreat from Obama Administration guidance indicating that Title IX’s sex discrimination prohibition applies to transgender students, as well as selected federal court cases supporting this new position. (See, our articles, Supreme Court Sends Transgender Student Case Back to Lower Court; Other Case Worth Watching, Trump Administration Rescinds Guidance on Transgender Rights under Title IX, and Court Decisions Could Frustrate Obama Administration Efforts to Protect Transgender Students, Employees.) The guidance makes clear that OCR personnel are no longer permitted to rely on Obama-era guidance to support a Title IX complaint brought by a transgender student.

Absent from this guidance is the recent decision from the U.S. Court of Appeals for the Seventh Circuit. That court held transgender students are afforded protection under Title IX. (See, our article, Seventh Circuit Hands Down Major Ruling in Transgender Student Case.)

However, the internal guidance document states that transgender students have protections against “discrimination, bullying and harassment” based on federal guidance and regulations. It urges OCR personnel to find “permissible jurisdictional bas[es] for OCR to retain and pursue the complaint.” In support of this effort, the internal guidance lists specific instances where OCR has “subject matter jurisdiction,” including allegations that a covered entity:

  • failed to promptly and equitably resolve a transgender student’s complaint of sex discrimination;
  • failed to assess whether sexual harassment or gender-based harassment of a transgender student created a hostile environment;
  • failed to take steps reasonably calculated to address sexual or gender-based harassment that creates a hostile environment;
  • retaliated against a transgender student after concerns about possible sex discrimination were brought to the covered entity’s attention; and
  • treated students differently based on sex stereotyping.

Failure to allow students to use the bathroom consistent with their gender identity is not on the list. Indeed, the guidance makes clear that complaints brought on this basis would not fall within OCR’s jurisdiction and should be dismissed. While the Department of Education has claimed the internal guidance document is meant to clarify protections afforded to transgender students (i.e., each complaint by a transgender student should be reviewed on a case-by-case basis to determine whether one of the above bases for a complaint exists), many view this updated guidance as a significant narrowing of the rights of a transgender student to file claims based on gender identity.

Still, at least one OCR employee interviewed by the Chicago Tribune has called the internal guidance a “green light” to pursue cases brought by transgender students, including those addressing bathroom access. The employees stated that “the presumption here should be it’s business as usual, and not that OCR is abdicating its role as a protector of civil rights for transgender students.”

Takeaways

The new guidance documents make clear that OCR personnel may not rely on Obama-era guidance documents when resolving or prioritizing complaints. Future OCR investigations into individual allegations of sexual violence likely will be narrower in scope and less burdensome than under the previous administration.

Please contact your Jackson Lewis attorney to discuss these developments and what they may mean to your organization.

©2017 Jackson Lewis P.C. This material is provided for informational purposes only. It is not intended to constitute legal advice nor does it create a client-lawyer relationship between Jackson Lewis and any recipient. Recipients should consult with counsel before taking any actions based on the information contained within this material. This material may be considered attorney advertising in some jurisdictions. Prior results do not guarantee a similar outcome.

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