Login | August 09, 2020

Experts weigh in on Title IX transgender students regs

Special Columnists

Published: August 31, 2016

The U.S. District Court for the Northern District of Texas issued a nationwide preliminary injunction on Aug. 21 blocking the U.S. Department of Education and other federal agencies from implementing the May 13 Title IX transgender guidance. As the U.S. Department of Justice is reviewing its options, it’s likely that some school systems have already implemented the Title IX transgender protections.

In this article, we will address the unique privacy and recordkeeping needs of transgender students for those schools that plan to grant the intended benefits of the Title IX guidance despite the Court’s recent injunction.

What Does ’Privacy’ Mean Under the Title IX Guidance?

Personally identifiable information (PII) of a transgender student includes his or her birth name and/or sex assigned at birth. It’s important to understand that a student’s sex (or gender identity) is not directory information and can only be shared to the extent permitted by law.

Under the Family Educational Rights and Privacy Act (FERPA), nonconsensual disclosure of PII is prohibited unless a specific exception applies. Within the school setting, there is a recognized exception to disclose PII to school personnel determined to have a legitimate educational interest. A FERPA violation exists where PII is disclosed to individuals with no right to PII disclosure, including certain school personnel.

Why is Privacy Important from a Medical Perspective?

In the medical world, individual and medical privacy is protected under an entity known as the Health Insurance Portability and Accountability Act of 1996 (HIPAA), which required the secretary of the U.S. Department of Health and Human Services (HHS) to develop regulations protecting the privacy and security of certain health information. To fulfill this requirement, HHS published what is commonly known as the HIPAA Privacy Rule, or Standards for Privacy of Individually Identifiable Health Information, which establishes national standards for the protection of certain health information. Prior to this act, it was fairly common for medical information and PII to be shared by parties not necessarily involved in the patient’s care. Such behavior is unethical, and this was realized and reinforced by HIPPA’s institution.

Under HIPPA, with any medical condition, disclosing PII to non-participating parties is prohibited. If a breach of HIPPA is encountered in the medical community, there are several policies in place to ensure that such an action was not done maliciously or with mal-intent and, if it was, significant corrective actions are enforced (including job termination).

Although elementary and secondary schools are not HIPAA covered entities, schools do maintain student-protected medical information within a child’s educational record and are bound by the legal privacy requirements in FERPA. For schools dealing with 504 plans or IEPs, it’s important to ensure the parent/guardian has completed necessary HIPAA compliant releases with the medical provider(s) so that relevant medical information can be secured and considered. That said, it’s important to remember that a transgender student does not need to provide medical proof for his or her status as transgender. Instead, medical information may be necessary in determining appropriate accommodations through 504 plans during any transitioning period.

Appropriate Name and/or Pronouns are Required

Under Title IX, a transgender student has the right to be addressed with the name and pronouns that correspond to his or her gender identity. This is paramount when the student is transitioning. Failure to use the student’s preferred name or pronouns constitutes a violation of Title IX according to the guidance. It’s well recognized within the guidance that appropriate name and pronoun usage is critical to a transgender student’s safety, support and well-being.

As discussed previously, children and adolescents who are transitioning in their gender identity have most likely undergone significant stress and duress coming to this conclusion. Each situation is different, given varying levels of parental and social acceptance; however, an underlying common theme is increased rates of depression and suicidal ideation among this group. If a student’s name and pronoun request is not honored, his or her transition process is not accepted. As a result, this further exacerbates that student’s depression, social isolation and high-risk behavior, and increases school drop-out rates. The Title IX guidance seeks to honor the student’s transition by necessitating the implementation of the student’s request in name and pronoun.

Determining Name Usage in Student Records

Within a student information database, schools must include the individual’s birth name and gender. For a transgender student, the Title IX guidance requires the student’s preferred name and gender to be maintained as well. A court order or gender change is not required to include the student’s preferred name and gender. When it comes to an official diploma or transcript, however, a school will generally use the individual’s legal name. The student may request these records be amended and re-issued later upon securing a legal name change.

The same rules apply in the medical setting. In order for insurance to cover a medical visit, the name on the insurance card MUST match the name in the medical record in order for the service to be covered. In the medical record, there is a place for preferred name and pronoun. However, the name in the medical record can not be changed until legally done so. Once there is an official name change, the name and gender on the insurance card and medical record can also be changed.

In the medical community, the preferred name is always used (or attempted to be used). It’s explained to the patient that the name on the medical record or wrist band is their given (birth) name and assigned sex, as it must match insurance identification in order to be covered. Once explained to the patient, while initially upsetting, the reasoning is usually understood. However, the preferred name should still be honored and used when verbally addressing the patient, as well as in other written communications.