February 27, 2017 Federal and State Guidance Regarding Transgender Students
KEEPING YOU INFORMED…
We are writing to inform you that the United States Departments of Education and Justice (“the Departments”) recently rescinded the federal guidance contained in their joint May 13, 2016 “Dear Colleague Letter” on Transgender Students and in the Department of Education’s January 7, 2015 letter to Emily Prince regarding transgender students.
These guidance documents provided that the Departments were interpreting Title IX’s prohibition of sex discrimination to include discrimination based on a student’s gender identity and transgender status. The documents required that, among other things, school districts treat students consistent with their gender identity and allow transgender students to have access to restroom and locker room facilities consistent with their gender identity.
Although this federal guidance is no longer in effect, school districts in New York State remain subject to similar guidance that was issued by the New York State Education Department in July of 2015 (“State Guidance”) (copy attached) and State law prohibiting discrimination based on a student’s gender identity or expression.
According to the State Education Department, New York State Attorney General Eric T. Schneiderman stated last week that, “[I]n New York State, the law remains the law — and school districts have independent duties to protect transgender students from discrimination and harassment when they go to school.” The Attorney General and State Education Commissioner MaryEllen Elia are strongly encouraging school districts to again review the State Guidance, which recommends that school districts take proactive steps to create a culture in which transgender and gender nonconforming students feel safe, supported and fully included.
The State Guidance further provides that schools should accept a student’s assertion of the student’s own gender identity. For example, a student who is a biological male who identifies as a female and wishes to be regarded as a female should be respected and treated like any other female student. Similar to the now-rescinded federal guidance, the State Guidance also recommends that school districts provide access to restrooms and locker rooms that are consistent with a student’s gender identity and covers how school districts should address a transgender student’s name and pronoun and revisions to the student’s records.
In addition to the State Guidance, school districts in New York State are also subject to the Dignity for All Students Act (“DASA”), a State law protecting students from harassment or bullying and prohibiting discrimination based on a person’s actual or perceived race, color, weight, national origin, ethnic group, religion, religious practice, disability, sexual orientation, gender or sex. Although it does not specifically address transgender or gender nonconforming students, DASA’s prohibition against discrimination based on gender is defined to prohibit discrimination based on a person’s gender identity or expression.
Requests from transgender and gender nonconforming students should be addressed on a case-by-case basis in consultation with legal counsel. Please contact us if you receive a request from a transgender or gender nonconforming student so that we may advise how best to respond in light of the applicable law and State Guidance as well as whether (and how) you should revise the student’s official records.
Please do not hesitate to contact Lauren Schnitzer at LS@lambbarnosky.com, or any of our other attorneys, if you have any questions regarding the information contained in this memorandum.
THIS MEMORANDUM IS MEANT TO ASSIST IN GENERAL UNDERSTANDING OF THE CURRENT LAW. IT IS NOT TO BE REGARDED AS LEGAL ADVICE. THOSE WITH PARTICULAR QUESTIONS SHOULD SEEK THE ADVICE OF COUNSEL.
© Lamb & Barnosky, LLP 2017
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