Understanding May 2016 'Dear Colleague' Letter


If you’re in the world of higher ed, you may have already heard about the latest “Dear Colleague” letter that was released by the U.S. Department of Justice on May 13th. The letter does not disclose anything new about Title IX, but it does re-emphasize some critical points that some schools may not still fully understand.

As higher education professionals already know, Title IX exists to prohibit sex discrimination in education programs that receive federal financial assistance. The point of this particular press release, however, is to drive home the fact that Title IX’s scope includes discrimination based on a student’s gender identity.

Gender identity, as defined by the letter, “refers to an individual’s internal sense of gender.” To be transgender means to possess a gender identity that conflicts with the sex an individual was assigned at birth. While the topic remains controversial, the fact of the matter is that per Title IX, a federally funded school must treat a student’s gender identity as the student’s sex. This means that a transgender male (someone who was assigned the sex of female at birth but identifies internally as male) must be regarded as male by the institution and treated no differently than other male students.
As with any Title IX violation, failing to comply can result in penalties up to complete loss of federal funding. So how does your campus ensure that you are following all Title IX guidelines regarding students’ gender identities?

While in no way a comprehensive overview of everything your campus must keep in mind, below are some of the key takeaway points from the letter that you’ll need to remember.

Students do not need to present a medical diagnosis or proof that they are transgender.

Being transgender is not considered a medical condition, so students must be regarded as the gender with which they identify as soon as they or a guardian notifies the school of the situation. Asking a student to provide official documentation from a doctor or other professional proving their transgender status might constitute a Title IX violation.

Students must be regarded as their gender identity in contexts that involve sex-segregated activities and facilities.

This includes, but is not limited to, restrooms, locker rooms, shower facilities, housing, and single-sex classes. Institutions also cannot force transgender students to use isolated facilities (like a single person bathroom or a one-person dorm room) when other students do not have to.

Failure to protect students’ privacy in regards to their transgender status could amount to a violation.

A Title IX violation may result if an investigation finds that an institution did not make a reasonable effort to protect information like a transgender student’s birth name or sex assigned at birth. While this information may be kept on record, every attempt must be made to keep these records confidential as to not harm the student in any way.

If a student requests that changes be made to their official institutional records in relation to their gender identity, the request for amendment must be handled the same way it would be for a cisgender student.

If a school denies such a request to change information on record regarding a student’s gender, they must inform the student of the right to a hearing. If the hearing does not result in the information being amended, the student must be informed of their right to include a personal statement in the official records that will be disclosed whenever the records are.

While no school wants to face a lawsuit, every school’s primary concern should be ensuring a healthy and productive environment for all of its students. In order to do this, it’s critical to stay up-to-date and aware regarding issues like gender identity as it relates to equality. At Symplicity, we’re committed to keeping you updated and helping you manage Title IX incidents and records with solutions like Advocate.

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