How Colleges Can Still Legally Protect Trans Students Without Coverage Under Title IX

02/22/2017 08:04 pm ET Updated Feb 24, 2017
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By Genny Beemyn and D.A. Dirks

The Trump administration’s revocation of the “Dear Colleague Letter on Transgender Students” further oppresses one of the most oppressed groups on college campuses and represents a complete reversal of federal efforts over the past few years to ensure the basic civil rights of trans students. But colleges can still legally encode the rights that the Trump administration is no longer protecting; it is time that institutions step up and support their trans students.

Research shows that trans students encounter high levels of discrimination and harassment on campuses. For example, the 2015 “Association of American Universities Campus Climate Survey on Sexual Assault and Sexual Misconduct,” which involved 27 colleges, found that trans and gender-nonconforming students experienced greater rates of sexual assault, sexual harassment, intimate partner violence, and stalking than any other campus group. In the 2015 “U.S. Transgender Survey,” the largest study ever conducted of trans people in the U.S., nearly one-quarter of the college student participants who were out, or perceived as trans, on campus had been verbally, physically, or sexually harassed.

The U.S. Departments of Education and Justice sought to address the unsafe climate on many college campuses for trans students by interpreting the prohibition of “sex discrimination” under Title IX to include gender identity and expression. A K-12 school or college that received federal funds had to give trans students equal access to all of its programs, facilities, and activities and treat trans people in accordance with their gender identity. The Dear Colleague Letter (DCL), issued on May 13, 2016, offered guidance on how institutions could protect the rights of trans students by providing safe and nondiscriminatory environments; respecting students’ chosen names and pronouns; ensuring the use of restrooms, locker rooms, and housing consistent with students’ gender identities and providing gender-inclusive facilities; and maintaining students’ privacy on campus records. In light of the DCL being withdrawn, colleges should immediately act to legally protect trans students in each of these areas.

1) Providing Safe and Nondiscriminatory Environments

Colleges that do not have “gender identity and expression” in their institutional nondiscrimination policy should add this language to ensure that trans students have recourse when they experience discrimination and harassment. Moreover, should harassment occur, colleges, in the words of the DCL, “must take prompt and effective steps to end the harassment, prevent its recurrence, and, as appropriate, remedy its effects.”

2) Respecting Students’ Chosen Names and Pronouns

Colleges should give students the ability to indicate the first names and pronouns they use for themselves and should respect these names and pronouns, even if legal documents still use their birth (dead) name. There is no law in any state that prevents colleges from allowing students to have a chosen name on all non-legal records and documents, including course rosters, ID cards, online directory listings, email addresses, advisee lists, unofficial transcripts, diplomas, and in all software systems that do not need a student’s legal name. It is also perfectly legal for colleges to give students the ability to change the gender marker on their campus records without any supporting evidence (i.e., without a letter from a therapist or doctor and without the need to change other documents first). In addition, colleges can and should enable students to indicate their pronouns through the institution’s Student Information System, which would then appear on course rosters and advisee lists.

3) Ensuring the Use of Restrooms, Locker Rooms, and Housing Consistent with Students’ Gender Identities and Providing Gender-Inclusive Facilities

Where not prevented by state law (which, as of this writing, is only public institutions in North Carolina), colleges should have an explicit policy enabling trans students to have access to gendered restrooms, locker rooms, and campus housing in keeping with their gender identity. Nonbinary trans students (individuals who do not identify as female or male) need to have access to gender-inclusive restrooms, locker rooms, and housing. Colleges should prioritize the creation of single-user, gender-inclusive restrooms by changing “men’s room” and “women’s room” signage and by developing new facilities.

4) Maintaining Students’ Privacy on Campus Records

Colleges must keep the gender identity, birth name, and gender assignment of trans students confidential and take steps to prevent the public disclosure of this information. Revealing that someone is trans places them at great risk for discrimination, harassment, and violence.

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