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New Internal Guidance From the Office of Civil Rights Regarding Transgender Complaints

Joel Gerring

By Joel Gerring, MASB Assistant Legal Counsel

DashBoard, June 21, 2017

On June 6, 2017, the Office of Civil Rights sent its Regional Directors a memorandum that provided new direction with respect to evaluating and investigating transgender student complaints. Specifically, Directors were informed that the prior May 13, 2016 "Dear Colleague" letter, which was viewed by many as being very progressive as it related to transgender rights under Title IX, was to no longer be relied upon. Instead, investigators were directed to “rely on Title IX and its implementing regulations, as interpreted in decision of federal courts and OCR guidance documents that remain in effect, in evaluation complaints of sex discrimination against individuals whether or not the individual is transgender.”

Pursuant to this memorandum, OCR will continue to investigate and enforce allegations involving transgender students and any:

  • Failure to resolve a sex discrimination claim
  • Failure to assess whether or not harassment has resulted in a hostile environment
  • Failure to take reasonable steps to address harassment leading to a hostile environment
  • Retaliation against a transgender student who has raised concerns regarding discrimination
  • Disparate treatment stemming from sex stereotyping.

The memo notes that OCR staff will now evaluate each allegation from a particular complainant individually. It instructs that investigators may proceed as to one set of allegations (and provides the specific example of “harassment based on gender stereotypes” as the sort that might proceed) while dismissing others (with the specific example of a “denial of access to restrooms based on gender identity” as the sort of complaint that might be dismissed). The memo emphasizes that OCR remains committed to investigating all claims of discrimination, bullying and harassment against those who are most vulnerable in our schools, and will continue to “robustly enforce” civil rights laws in a manner that is neutral, impartial and efficient.

The immediate impact of this new directive as it relates to transgender civil rights vis-à-vis school districts is not entirely clear; however, it will certainly bring about some changes as it relates to the manner in which transgender civil rights claims are investigated by OCR. It also appears as though OCR will be somewhat stricter with respect to determining when any given civil rights complaint filed with their office is accompanied by enough information to warrant action on its part. With the withdrawal of the 2016 Dear Colleague letter, some federal cases involving transgender access to certain “intimate facilities” that relied heavily upon the guidance contained within that letter may be more likely to resolve in favor of the defendant school districts.

Finally, it should also be noted that this June 6 memorandum was followed up by a June 8 directive to Regional Directors that immediately changes some of the practices used to investigate school districts alleged to have committed certain civil rights violations. Under this directive, there is no longer an “automatic” review by OCR Headquarters for certain types of allegations. Per the directive, no particular “type” of complaint will receive any more, or any less, attention than another. Also eliminated was the requirement that three years of past complaint data be compiled in order to assess a particular school district’s compliance history. Under these new rules, investigators may now decide on a case-by-case basis how much, and what type, of past data to rely upon, if any. In addition, investigation teams will now have more discretion as it relates to collecting evidence as well as determining what type of investigative approach to employ.

For specific questions on this development, feel free to contact MASB’s Legal Department.

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