On May 13, 2016, the Department of Justice and the Department of Education issued a “Dear Colleague Letter” (DCL) describing reasonable steps to protect transgender students under Title IX of the Educational Amendments of 1972 (Title IX) as well as the Family Educational Rights and Privacy Act (FERPA).
Title IX prohibits discrimination on the basis of sex in any federally funded education program or activity, including discrimination based on a student’s transgender status. FERPA prohibits a school from disclosing personally identifiable information from a student’s education records without consent, unless an exception to FERPA’s general consent rule applies. The DCL states that the nonconsensual disclosure of a transgender student’s personally identifiable information (PII), including the student’s birth name or sex assigned at birth, could be harmful to or invade the privacy of transgender students and may also violate FERPA.
The DCL provided the following guidance regarding the privacy rights of transgender students:
- A student’s transgender status may only be disclosed to individual school personnel who have a legitimate educational interest in the information, even if the student voluntarily discloses this information to some members in the school community.
- Generally, schools may disclose “appropriately designated directory information” if the disclosure is not harmful or an invasion of privacy. A student’s sex, including transgender status, is not directory information because its disclosure could be harmful or an invasion of privacy.
- Schools may receive requests to correct a student’s education records to reflect a student’s gender identity and new name. Updating the student’s education records “will help protect privacy and ensure personnel consistently use appropriate names and pronouns.”
- Under FERPA, a student has the right to request that inaccurate or misleading information, or information in violation of the student’s privacy rights, be amended. If the school decides not to amend a record in accordance with a student’s request, the school must inform the student of his or her right to a hearing on the matter. If, as a result of the hearing, the school still decides not to amend the record, the eligible student has the right to insert a statement in the record. The statement must remain with the contested part of the student’s record for as long as the record is maintained and be disclosed whenever the record to which the statement relates is disclosed.
- Under Title IX, a school must respond to a request to amend information related to a student’s transgender status consistent with its general practices for amending other student’s records. If a student or parent complaints about the school’s handling of such a request, the school must promptly and equitably resolve the complaint under the school’s Title IX grievance procedures.
The DCL was accompanied by a separate document from the Office of Elementary and Secondary Education, Examples of Policies and Emerging Practices for Supporting Transgender Students, which provides state and school district policies that address protecting a student’s privacy regarding transgender status, ensuring that a transgender student is called by the appropriate name and pronouns, and handling requests to change the name or sex designation on a student’s records.