What rights do students in the U.S. have re gender pronouns?

Question

What federally protected legal rights does a transgender student in the U.S. have re gender pronouns used in referring to the student?

This question was inspired by the recent discussion of gender pronouns at Academia Meta.

Answer 1

I think another answer here is misleading, so I am writing to clarify what federally protected rights transgender students in the U.S. can reasonably expect at this time.

As things currently stand:

• The federal government is not allowed to pursue Title IX investigations that interpret Title IX's sex discrimination prohibition to include discrimination based on gender identity.
• The Department of Justice and Department of Education have rescinded guidance (issued by the previous administration) that instructed schools to treat discrimination based on gender identity as a Title IX issue.
• The U.S. Supreme Court may indicate later this year whether Title IX protections apply to transgender students who face discrimination based on gender identity.

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Previous federal guidance in the Dear Colleague letter of May 2016 considered discrimination based on gender identity to be sex-based discrimination. According to this interpretation, Title IX protections would then apply to transgender students who are subject to discrimination because of their gender identity. This would certainly not have required school employees to use gender-neutral language as a general rule, but that letter did support e.g.

• a student's right to ask school employees and contractors to use pronouns consistent with their gender identity,
• the school's Title IX responsibility to mitigate (to the degree that they can) the harassment of students due to gender identity. There is legal precedent (see footnote 9 in the document linked above) to suggest that persistent misgendering can be considered sex-based harassment if it is severe or pervasive: "Persistent failure to use the employee’s correct name and pronoun may constitute unlawful, sex-based harassment if such conduct is either severe or pervasive enough to create a hostile work environment"

However, this interpretation - that Title IX protections apply to gender identity - was challenged in the courts in Texas v United States. An August 2016 injunction bars the federal government from enforcing the interpretation of Title IX put forth in the Dear Colleague letter:

Defendants are enjoined from enforcing the Guidelines against Plaintiffs and their respective schools, school boards, and other public, educationally-based institutions. Further, while this injunction remains in place, Defendants are enjoined from initiating, continuing, or concluding any investigation based on Defendants’ interpretation that the definition of sex includes gender identity in Title IX’s prohibition against discrimination on the basis of sex.

The U.S. Department of Justice indicated an intent to appeal that Texas decision, and in November 2016, asked for a partial stay on the injunction, arguing that the injunction should only apply to the states involved in the lawsuit. A hearing on that motion for a partial stay would have taken place in February 2017. However, the new administration's Department of Justice withdrew that motion just before the scheduled hearing, noting that the "parties are currently considering how best to proceed in this appeal." Shortly afterwards, the Department of Justice and Department of Education issued a new Dear Colleague letter withdrawing the guidance in the May 2016 letter.

Meanwhile, in March 2017 the U.S. Supreme Court will hear a related case, in which they may decide whether Title IX protections apply to gender identity. This case, too, is complicated by the withdrawal of the May 2016 letter, a move that has been communicated to the court.

Answer 2

As recently clarified by a "Dear Colleague" letter from the U.S. Department of Education's Office for Civil Rights, under Title IX, in educational institutions receiving public funding, transgender students have the right to be referred to by their chosen gender pronouns. Also, educational institutions must "take reasonable steps to protect students’ privacy related to their transgender status, including their birth name or sex assigned at birth. [...] A school may maintain records with this information, but such records should be kept confidential."

For additional clarification, also see OCR's accompanying publication, "Examples of Policies and Emerging Practices for Supporting Transgender Students".

In the referenced Meta discussion, one user asserted, "Gendered pronouns are not offensive content with respect to the Be Nice policy that all Stack Exchange users are required to follow."

That may be true -- after all, Stack Exchange sites are not subject to Title IX -- but as the above-cited guidance from OCR shows, using a non-preferred gendered pronoun in a public educational setting is not only offensive to a transgender individual, if it is done on a public campus, it could result in the institution losing public funding [bold text added 10/6/16 to be more precise].

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Edit 10/5/16, response to comment

Note that Title IX [...] does not require gender neutral pronouns as a general rule.

The Dear Colleague letter recognizes that "gender transition can happen swiftly or over a long duration of time." Recognizing that a student may feel gender fluid during the process of transition, and recognizing students' right to privacy, the take-home message that I got from the OCR documents is that when in doubt, avoidance of gendered pronouns can be the most sensitive course of action.

While the OCR documents cited do not state this explicitly, they do support it. The "Examples of Policies and Emerging Practices" include, as positive examples, the following quotes from state and district policies:

• "If you are unsure about a student’s preferred name or pronouns, it is appropriate to privately and tactfully ask the student what they prefer to be called." (DCPS)

• [Faculty and staff training should include] “gender-neutral language and practices.” (Massachusetts)

• “As with most other issues involved with creating a safe and supportive environment for transgender students, the best course is to engage the student, and possibly the parent, with respect to name and pronoun use, and agree on a plan to reflect the individual needs of each student to initiate that name and pronoun use within the school." (New York)

• [Schools are advised to] "collect or maintain information about students’ gender only when necessary." (Massachusetts)

• “When speaking with other staff members, parents, guardians, or third parties, school staff should not disclose a student’s preferred name, pronoun, or other confidential information pertaining to the student’s transgender or gender nonconforming status without the student’s permission." (Chicago)

It can be challenging to speak or write in English without gendered pronouns! OCR demonstrates that with a little effort, it can be done without confusion, and without too much awkwardness: http://www2.ed.gov/about/offices/list/ocr/docs/investigations/more/02131220-a.pdf