May 22, 2018 New Dignity for All Students Act Regulation
KEEPING YOU INFORMED…
We are writing to advise you of an amendment to the Regulations of the Commissioner of Education regarding the Dignity for All Students Act (“DASA”). The amendment was adopted as an emergency rule effective May 8, 2018. It is anticipated that following a 60-day public comment period, the amendment will be presented to the Board of Regents at its July 2018 meeting. If the Board of Regents adopts the amendment at its July 2018 meeting, then the amendment will become effective as a permanent rule on August 1, 2018.
The amendment lists examples of incidents of harassment, bullying and/or discrimination that must be reported pursuant to DASA. Specifically, the amendment adds the following new subparagraph (x) to Section 100.2(kk)(1) of the Commissioner’s Regulations, which provides definitions for the terms that are used in DASA’s reporting requirements:
(x) For purposes of this section, a “report of harassment, bullying, and/or discrimination” means a written or oral report of harassment, bullying, and/or discrimination that could constitute a violation of the Dignity for All Students Act (Article 2 of the Education Law). Such a report may include, but is not limited to, the following examples:
(a) a report regarding the denial of access to school facilities, functions, opportunities or programs including, but not limited to, restrooms, changing rooms, locker rooms, and/or field trips, based on a person’s actual or perceived race, color, weight, national origin, ethnic group, religion, religious practice, disability, sexual orientation, gender (which includes gender identity and/or expression), or sex; or
(b) a report regarding application of a dress code, specific grooming or appearance standards that is based on a person’s actual or perceived race, color, weight, national origin, ethnic group, religion, religious practice, disability, sexual orientation, gender (which includes gender identity and/or expression), or sex; or
(c) a report regarding the use of name(s) and pronoun(s) or the pronunciation of name(s) that is based on a person’s actual or perceived race, color, weight, national origin, ethnic group, religion, religious practice, disability, sexual orientation, gender (which includes gender identity and/or expression), or sex; or
(d) a report regarding any other form of harassment, bullying and/or discrimination, based on a person’s actual or perceived race, color, weight, national origin, ethnic group, religion, religious practice, disability, sexual orientation, gender (which includes gender identity and/or expression), or sex.
According to an April 26, 2018 State Education Department (“SED”) memorandum (copy attached), one purpose of the amendment is to clarify that taking certain actions because of a student’s transgender status, gender identity and/or gender expression may violate DASA and must, therefore, be reported. This includes denying a request to use school facilities (restrooms, locker rooms, etc.) that are consistent with the student’s gender identity. Thus, denying the request of a biological male who identifies as female to use the female restrooms may violate DASA.
The amendment clarifies that students should not be required to conform to dress codes and appearance standards written for their biological gender if they identify as the opposite gender. For example, a school should not require a biological male who identifies as female to wear a tie if only male students are required to wear ties. We note, however, that according to SED’s July 2015 Guidance for Creating a Safe and Supportive School Environment for Transgender and Gender Nonconforming Students, dress codes should be gender neutral and, therefore, schools should not have different clothing requirements for males and females.
The amendment also provides that using the name and/or pronoun of a student that matches the student’s biological, not preferred, gender may violate DASA. For example, a biological male named John who identifies as a female and asks to be called Jane should be referred to as a female named Jane. Pursuant to the amendment, refusing to do so may violate DASA.
It is not known whether the amendment will be adopted as a permanent rule in August or whether it will undergo revisions prior to its final adoption. Regardless, you should review your DASA policies and regulations to ensure that they are in compliance with the amendment. We will let you know if, and when, the amendment is adopted and/or revised.
If you have questions or if you would like assistance reviewing and/or revising your DASA policies and regulations, please contact Lauren Schnitzer or one of our other attorneys by calling 631-694-2300.
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.
April 26, 2018 State Education Department Memo
Attorney Advertising: Prior Results Do Not Guarantee A Similar Outcome.
© Lamb & Barnosky, LLP 2018