On October 26, 2021, the U.S. Department of Education’s Office for Civil Rights (“OCR”) published a fact sheet addressing key issues that intersex students face in schools and providing recommendations on how students, families, and educators can lend support. The guidance, released on Intersex Awareness Day, first provides general information on the meaning of “intersex” before highlighting the unique challenges that intersex students experience and ways schools can assist them. 

As the publication defines it, “intersex” is a term used to describe those with anatomical, hormonal, chromosomal, and/or other variations in physical sex characteristics that differ from expectations generally associated with male and female bodies. Intersex students often endure bullying, harassment, and other discrimination on account of these differences, as well as skepticism from others about their gender identity and social isolation from activities in which students are separated by sex. Additionally, students included under the “intersex” umbrella may have unique health needs given complications arising from medical interventions, and they may struggle to maintain the confidentiality of their personal health information as consequence. 

To counter the aforementioned issues, OCR suggests that schools do the following:

• Use inclusive language in school mission statements;
• Affirm students’ right to be free from all forms of sex discrimination at school;
• Adopt policies that respect all students’ gender identities, and, where relevant, accurately reflect the diversity of human bodies;
• Advance gender-neutral practices;
• Maintain the confidentiality of students’ medical information, except where disclosure is legally required;
• Facilitate opportunities for students to find support from peers, teachers, faculty, and staff; and
• Provide professional development opportunities for educators on supportive treatment of intersex students.

Finally, OCR’s guidance articulates a three-step reporting procedure for students who believe that they—or other students—have experienced sex discrimination in school. Consistent with the Department’s guidance, Local Education Agencies should assess the adequacy of support services currently offered to intersex students. 

If you have any questions about this Legal Update, or would like assistance reviewing your current policies and practices surrounding the provision of support services, please contact your Buelow Vetter attorney.