Transgender Students: Evaluating Your Practices
In June 2021, the Department of Education (ED) announced that LGBTQ students are protected by Title IX, but this guidance has since been subject to legal challenges. Consult with counsel to understand whether LGBTQ K-12 and college students in your state can file a complaint with ED’s Office for Civil Rights (OCR), which enforces Title IX, if they face discrimination or harassment based on their LGBTQ status.
While the U.S. Supreme Court hasn’t decided Title IX applies to LGBTQ students, ED cited a 2020 Supreme Court ruling that determined Title VII, the federal law prohibiting sex discrimination by employers, extends to gay and transgender people. ED has proposed codifying these revisions in its draft proposed Title IX regulations which explicitly include sexual orientation, gender identify, and sex characteristics in Title IX’s prohibition against discrimination “on the basis of sex.” The proposed regulations don’t address athletics issues, including participation of transgender students on sports teams, for which ED plans to conduct a separate future rulemaking process. Continue to monitor developments related to the revised regulations.
To date, more than 1,000 colleges and universities have policies prohibiting discrimination on the basis of gender identity. As you assess practices in relation to transgender students, consider the following actions to help avoid discrimination:
When possible, permit students to change institution-created records to reflect their self-identified gender, not their birth sex. Additionally, educate the campus community, especially staff changing campus records, about the alteration process and its significance to transgender students. For example, a Tulane University webpage provides an overview of transgender rights and resources, including an explanation of how to change a student’s name and gender on official records.
Give transgender students the option to live in on-campus housing associated with their self-identified gender. Also offer gender-neutral housing options, including residence halls, floors, or suites. OCR doesn’t condone requiring transgender students to use segregated housing, such as a single-room residence.
Across your campus, in high-use locations such as classroom buildings, student centers, and dining areas, offer family or gender-neutral restrooms. For older buildings, this may require converting single-sex restrooms. Michigan State University developed an online map of its gender-neutral restrooms, which can alleviate transgender student concerns over restroom access.
Provide spaces for personal privacy in locker rooms — similar to those available in restrooms — to minimize the potential for embarrassment, harassment, or other harms to transgender students. If an institution can’t offer these private spaces in its locker rooms, OCR recommends adopting a policy permitting access to locker rooms and other sex-segregated spaces based on self-identified gender.
- Intercollegiate. Review and follow the policies of your college’s athletic organization — the NCAA, NAIA, or NJCAA — regarding transgender student-athlete participation. For example, the NCAA’s position is articulated in its “Inclusion of Transgender Student-Athletes” handbook, which balances inclusion with competitive fairness by imposing hormone requirements on transgender athletes wishing to compete as their identified gender.
- Intramural. Determine whether your institution’s intramural programs emphasize participation by all students or are sex-segregated and focus primarily on competition. If the latter, participation may need to follow biological distinctions, similar to those imposed by the NCAA, to promote competitive fairness. However, if the program is mixed gender, permit participation of transgender students in accordance with their self-identity.
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About the Author
Alyssa Keehan, Esq.
CPCU, ARM, Director of Risk Management Research & Consulting
Alyssa oversees the development of UE’s risk management content and consulting initiatives, ensuring reliable and trustworthy guidance for our members. Her areas of expertise include campus sexual misconduct, Title IX, threat assessment, campus security, contracts, and risk transfer. She previously handled UE liability claims and held positions in the fields of education and insurance.