A couple of months ago, the civil rights units of the United States Departments of Justice and Education issued a “significant guidance” letter to schools concerning the requirements of Title IX and FERPA that apply to transgender students. The anti-discrimination aspects of this guidance got fair play in the press, but the privacy notes were overlooked. I’m circling back to those in this post. There are four key points:
(1) In the letter, the Departments noted that they may find Title IX and FERPA violations when a school “fails to take reasonable steps to protect students’ privacy related to their transgender status, including their birth name or sex assigned at birth.”
(2) The Departments further implied that reliance on the FERPA exception for disclosures of this information to specific personnel with a “legitimate educational interest in the information” would be carefully scrutinized to make sure the personnel do, in fact, have such an interest.
(3) The Departments also forbade schools from designating a student’s sex, “including transgender status,” as disclosable “directory information” under FERPA.
(4) Finally, the Departments implied that if the school receives a request from a transgender student to correct education records to make them consistent with the student’s gender identity, they should honor the requests. They also reminded schools of the procedural requirements FERPA imposes on the handling of such requests, and noted that Title IX requires a school to treat these requests “consistent with its general practices for amending other students’ records.”
In theory, “significant guidance” letters do not make new law. But they sure do make clear how the government will enforce it. “Govern yourself accordingly,” as they say.