To Accountability…and Beyond To Accountability…and Beyond!! Brustein & Manasevit Fall Forum 2016 November 30 – December 2, 2016 Recent Developments in Civil Rights Protections for Transgender Students Leigh Manasevit, Esq. lmanasevit@bruman.com Jennifer Segal, Esq. jsegal@bruman.com www.bruman.com

Introduction to Title IX No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance - Title IX of the Education Amendments of 1972 20 U.S.C. §1681 Brustein & Manasevit, PLLC © 2016. All rights reserved.

Introduction to Title IX The Office for Civil Rights of the Department of Education enforces the law prohibiting specific discriminatory activities. Applies to elementary, secondary, and postsecondary schools Title IX covers any education program or activity receiving Federal funds Entire institution – Grove City followed by Civil Rights Restoration Act of 1988 Brustein & Manasevit, PLLC © 2016. All rights reserved.

student treatment and services counseling and guidance discipline Programs and activities that receive USDE funds must operate in a nondiscriminatory manner. admissions recruitment financial aid academic programs student treatment and services counseling and guidance discipline classroom assignment grading vocational education recreation physical education athletics housing employment Brustein & Manasevit, PLLC © 2016. All rights reserved.

Federal Enforcement Requirements Adams Litigation against HEW (1970) – claimed failure to commence enforcement proceedings OCR Guidelines Brustein & Manasevit, PLLC © 2016. All rights reserved.

Development of May 2016 Joint DCL on Transgender Students December 2014 “Questions and Answers on Title IX and Single-Sex Elementary and Secondary Classes and Extracurricular Activities.” “All students, including transgender students and students who do not conform to sex stereotypes, are protected from sex-based discrimination under Title IX. Under Title IX, a recipient generally must treat transgender students consistent with their gender identity in all aspects of the planning, implementation, enrollment, operation, and evaluation of single-sex classes.” January 2015 Opinion Letter signed by James Ferg-Cadima, the Acting Deputy Assistant Secretary for Policy for OCR: “When a school elects to separate or treat students differently on the basis of sex . . . a school generally must treat transgender students consistent with their gender identity.” Resolution agreements (E.g., Township High School District 211 (Ill.) OCR Case # 05- 14-1055 (Dec. 2, 2015)) May 2016 Joint (ED and DOJ) DCL on Transgender Students Brustein & Manasevit, PLLC © 2016. All rights reserved.

May 2016 Joint (ED and DOJ) DCL on Transgender Students Schools have a responsibility to: “treat a student’s gender identity as the student’s sex for purposes of Title IX” “not treat a transgender student differently from the way it treats other students of the same gender identity” “treat students consistent with their gender identity even if their education records or identification documents indicate a different sex.” Brustein & Manasevit, PLLC © 2016. All rights reserved.

Terminology (DCL cont.) Title IX - Title IX of the Education Amendments of 1972 (20 U.S.C. § 1681 et seq.) and its implementing regulations. Gender identity - Individual’s internal sense of gender. It may be different from, or the same as, the person’s sex assigned at birth. Sex assigned at birth - The sex designation recorded on an infant’s birth certificate should such a record be provided at birth. Transgender - Individuals whose gender identity is different from the sex they were assigned at birth. A transgender male is someone who identifies as male but was assigned the sex of female at birth; a transgender female is someone who identifies as female but was assigned the sex of male at birth. Brustein & Manasevit, PLLC © 2016. All rights reserved.

Terminology (DCL cont.) Gender transition - The process of transgender individual asserting the sex that corresponds to gender identity instead of sex assigned at birth. Begin to live and identify as the sex consistent with their gender identity May dress differently, adopt a new name, and use pronouns consistent with their gender identity May undergo gender transition at any stage of their lives Transition can happen swiftly or over a long duration of time (See U.S. Department of Education and U.S. Department of Justice, Dear Colleague Letter on Transgender Students (May 13, 2016)). Brustein & Manasevit, PLLC © 2016. All rights reserved.

DCL on Transgender Students (cont.) Restrooms and Locker Rooms A school may provide separate facilities on the basis of sex, but must allow transgender students access to facilities consistent with their gender identity. Brustein & Manasevit, PLLC © 2016. All rights reserved.

DCL on Transgender Students (cont.) Athletics Sex segregated athletics teams are permitted when selection is based upon competitive skill or when the activity involved is a contact sport. Brustein & Manasevit, PLLC © 2016. All rights reserved.

DCL on Transgender Students (cont.) Athletics (cont.) May adopt age-appropriate, tailored requirements based on sound, current, and research-based medical knowledge about the impact of the students’ participation on the competitive fairness or physical safety of the sport No broad generalizations or stereotypes about the differences between transgender students and other students of the same sex Brustein & Manasevit, PLLC © 2016. All rights reserved.

Example: NCAA Policy on Transgender Student-Athletes Consulted with medical experts, athletics officials, affected students, and a consensus report entitled “On the Team: Equal Opportunity for Transgender Student Athletes” (2010) Any transgender student-athlete who is not taking hormone treatment related to gender transition may participate in sex-separated sports activities in accordance with his or her assigned birth gender. A trans male (FTM) student-athlete who is not taking testosterone related to gender transition may participate on a men’s or women’s team. A trans female (MTF) transgender student-athlete who is not taking hormone treatments related to gender transition may not compete on a women’s team. Brustein & Manasevit, PLLC © 2016. All rights reserved.

DCL on Transgender Students (cont.) Single-Sex Classes School must allow transgender students to participate consistent with their gender identity. . Brustein & Manasevit, PLLC © 2016. All rights reserved.

DCL on Transgender Students (cont.) Single-Sex Schools Title IX does not apply to admissions policies Social Fraternities and Sororities Title IX does not apply to membership practices Brustein & Manasevit, PLLC © 2016. All rights reserved.

DCL on Transgender Students (cont.) Housing and Overnight Accommodations A school must allow transgender students to access housing consistent with gender identity and may not require transgender students to stay in single-occupancy accommodations or to disclose personal information when not required of other students. Brustein & Manasevit, PLLC © 2016. All rights reserved.

DCL on Transgender Students (cont.) Discipline May not discipline students or exclude them from participating in activities for appearing or behaving in a manner that is consistent with their gender identity or that does not conform to stereotypical notions of masculinity or femininity yearbook photographs school dances graduation ceremonies Brustein & Manasevit, PLLC © 2016. All rights reserved.

DCL on Transgender Students (cont.) Privacy and Education Records Family Educational Rights and Privacy Act (FERPA) prevents the nonconsensual disclosure of personally identifiable information (PII) from a student’s education records (e.g., a student’s birth name or sex assigned at birth). Brustein & Manasevit, PLLC © 2016. All rights reserved.

DCL on Transgender Students (cont.) What about directory information? May disclose directory information if it would not generally be considered harmful or an invasion of privacy. May not designate students’ sex, including transgender status, as directory information. Must allow eligible students (i.e., students who have reached 18 years of age or are attending a postsecondary institution) or parents time to request that the school not disclose a student’s directory information. Brustein & Manasevit, PLLC © 2016. All rights reserved.

DCL on Transgender Students (cont.) Amendment or Correction of Education Records Must consider student/parent request to amend information that is inaccurate, misleading, or in violation of the student’s privacy rights. Must inform requestor of decision and of the right to a hearing. If, after the hearing, the school does not amend the record, it must inform the requestor of the right to insert a statement in the record. Brustein & Manasevit, PLLC © 2016. All rights reserved.

Examples: Best Practices for Protecting Privacy Could Include Develop support team Ensure correct pronoun use Develop plan for transitioning while at school Discuss extent of parent involvement Eliminate arbitrary gender dividers Restroom/locker room privacy Provide all students with option for greater privacy Approaching requests to amend records Changing name/pronoun in file Developing second file Section for “preferred name” Students who transition post-graduation, option to amend file Brustein & Manasevit, PLLC © 2016. All rights reserved.

Brustein & Manasevit, PLLC © 2016. All rights reserved. What is a Recipient’s Obligation to Ensure Its Subrecipients Comply with Title IX? Application Assurance Education Department General Administrative Regulations (EDGAR) Methods of Administration Brustein & Manasevit, PLLC © 2016. All rights reserved.

Recent Lawsuits It’s headed to the Supreme Court!! (Or is it?) G.G. v. Gloucester County Sch. Bd., 132 F.Supp.3d 736 (E.D. Va. 2016), rev’d in part, vacated in part, 2016 WL 1567467 (4th Cir. 2016), petition for rehearing en banc denied (May 31, 2016), application to stay granted (S. Ct. 2016), cert. granted (Oct. 28, 2016). Issues before the court: Whether Auer deference should be extended to the Ferg- Cadima Letter Whether ED’s interpretation of Title IX and 34 C.F.R. § 106.33 is binding Brustein & Manasevit, PLLC © 2016. All rights reserved.

Brustein & Manasevit, PLLC © 2016. All rights reserved. What is Auer Deference? “Requires that an agency’s interpretation of its own ambiguous regulation be given controlling weight unless the interpretation is plainly erroneous or inconsistent with the regulation or statute.” Auer v. Robbins, 519 U.S. 452 (1997) Interpretations must “reflect the agency’s fair and considered judgment on the matter in question.” Id. at 462. An interpretation will not be accorded Auer deference, when the interpretation: 1. conflicts with a prior interpretation, 2. when it appears that the interpretation is no more than a convenient litigating position, 3. or when the interpretation is a post hoc rationalization. Brustein & Manasevit, PLLC © 2016. All rights reserved.

Predictions Under the Trump Administration Prior Statements on this issue: “Mr. Trump told a town-hall-style event, hosted by NBC’s “Today” show at Rockefeller Center in Manhattan, that when people go to the restroom, they should ‘use the bathroom they feel is appropriate.’” - New York times, “Donald Trump Says Transgender People Should Use the Bathroom They Want” (Apr. 21, 2016) BUT “Pence said both he and the Republican presidential candidate believe that the transgender bathroom issue can be resolved with common sense at the local level. They should be resolved with safety and privacy of children and with common sense, at the state level, he adds ’Washington has no business intruding on the operation of our local schools,’ Pence stresses.” - The Christian Post, “Mike Pence to James Dobson: Trump Will Resolve Birth Control Mandate, Transgender Bathroom Issues,” (Oct. 5, 2016) Brustein & Manasevit, PLLC © 2016. All rights reserved.

Other Pending Lawsuits Students and Parents for Privacy v. U.S. Dep’t of Educ., No. 16-4945 (N.D. Ill filed May 4, 2016). North Carolina v. United States, No. 16-238 (E.D.N.C. filed May 9, 2016). United States v. North Carolina, No. 16-425 (M.D.N.C filed May 9, 2016). Texas v. United States, No. 16-00054 (N.D. Tex. filed May 25, 2016). Nebraska v. United States, No. 16-03117 (D. Neb. filed July 8, 2016). Brustein & Manasevit, PLLC © 2016. All rights reserved.

Is There a Possibility of Legislative Action? Bills pending before the U.S. House of Representatives: Introduced on May 18, 2016 by Rep. Luke Messer (R-IN), titled H.R. 5275: Prohibiting the Usurpation of Bathroom Laws through Independent Choice (PUBLIC) School Act of 2016. would allow for States and local govt to “enact and enforce policies regarding the use of sex-segregated bathrooms and sex-segregated locker rooms of educational institutions on the basis of gender identity” would prohibit Federal agencies from withholding funds because of their bathroom policies Introduced on May 19, 2016 by Rep. Brian Babin (R-TX), titled H.R. 5294: Student Privacy Protection and Safety Act of 2016. aims to invalidate the DCL guidance states that the joint guidance shall have no effect on legal proceedings Brustein & Manasevit, PLLC © 2016. All rights reserved.

Is There a Possibility of a Legislative Action? (cont.) Introduced on May 23, 2016 by Rep. Abraham (R-LA), titled, H.R.5307: Title IX Clarification Act of 2016. aims to amend Title IX to clarify the definition of “sex” as biological sex. Brustein & Manasevit, PLLC © 2016. All rights reserved.

Brustein & Manasevit, PLLC © 2016. All rights reserved. What does this all mean?? Brustein & Manasevit, PLLC © 2016. All rights reserved.

Brustein & Manasevit, PLLC © 2016. All rights reserved. Resources Code of Federal Regulations: 34 C.F.R part 106 http://www.ecfr.gov/cgi-bin/text- idx?SID=b6d77d5c8ddb2a1e7f293e9601abbb27&mc=true&tpl=/ecfrbrows e/Title34/34cfr106_main_02.tpl28 C.F.R. part 54 28 C.F.R. part 54 http://www.ecfr.gov/cgi-bin/text- idx?SID=e6d1d0269f98a00ed1c5847f4a836e21&mc=true&tpl=/ecfrbrowse /Title28/28cfr54_main_02.tpl U.S. Department of Education Office for Civil Rights Website: http://www2.ed.gov/about/offices/list/ocr/index.html Brustein & Manasevit, PLLC © 2016. All rights reserved.

Brustein & Manasevit, PLLC © 2016. All rights reserved. More Resources DOJ Civil Rights Division, Education Opportunities Section Website: https://www.justice.gov/crt/educational-opportunities-section-overview ED’s Website: www.ed.gov/ocr/lgbt.html ED and DOJ, Dear Colleague Letter on Transgender Students (May 13, 2016); Examples of Policies and Emerging Practices for Supporting Transgender Students (May 13, 2016); Resolution Agreements; and Title IX and other ED Resources for Transgender and Gender-Nonconforming Students. Brustein & Manasevit, PLLC © 2016. All rights reserved.

Brustein & Manasevit, PLLC © 2016. All rights reserved. Legal Disclaimer This presentation is intended solely to provide general information and does not constitute legal advice or a legal service.  This presentation does not create a client-lawyer relationship with Brustein & Manasevit, PLLC and, therefore, carries none of the protections under the D.C. Rules of Professional Conduct.  Attendance at this presentation, a later review of any printed or electronic materials, or any follow-up questions or communications arising out of this presentation with any attorney at Brustein & Manasevit, PLLC does not create an attorney-client relationship with Brustein & Manasevit, PLLC.  You should not take any action based upon any information in this presentation without first consulting legal counsel familiar with your particular circumstances. Brustein & Manasevit, PLLC © 2016. All rights reserved.