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TRANSGENDER PROTECTIONS IN PUBLIC SCHOOLS:RECENT DEVELOPMENTS
Bradford A. King(804) [email protected]
Nicole S. Cheuk(804) [email protected]
What does “transgender” mean?
A transgender person has a gender identity (one’s internal sense of gender) that is different from the gender identification listed on the individual’s birth certificate.
A “transgender male” is a person born female, transitioning to or living as a male.
Transgender individuals may or may not seek medical intervention, including hormone treatment or sex-reassignment surgery.
Protections for Students: Federal Law
Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq. (Title IX): “No person in the United States shall, on the basis of sex, be
excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”
U.S. Department of Education’s Office for Civil Rights (“OCR”) interprets this to include gender-based harassment.
Gender-based harassment includes verbal, non-verbal or physical aggression, intimidation, or hostility based on sex or sex stereotyping, including failing to conform to stereotypical notions of masculinity or femininity.
Protections for Students: Title IX
School divisions are not liable for one student harassing another, but may be liable for failing to respond adequately, whether or not the harassed student makes a complaint or asks the school to take action.
School division may violate Title IX if: Harassing conduct is sufficiently serious to deny or limit the
student’s ability to participate in or benefit from the educational program;
The division knew or reasonably should have known about the harassment; and
The division failed to take appropriate responsive action.
Protections for Students: Title IX
When a school division knows or reasonably should know of possible harassment, it must take immediate and appropriate steps to investigate or otherwise determine what occurred.
If an investigation reveals that the harassment created a hostile environment, the school district must then take prompt and effective steps reasonably calculated to: End the harassment; Eliminate the hostile environment; Prevent its reoccurence; and As appropriate, remedy its effects.
Office for Civil Rights Complaints
Arcadia Unified School District (CA) – July 2013 landmark OCR decision.
Complaint alleged discrimination on the basis of sex against a student, born female but identified as male. Specifically, school division prohibited him from accessing (1)
sex-specific facilities designated for male students, and (2) sex-specific student cabins for male students during a school-sponsored overnight camp.
Without admitting unlawful conduct, school division entered into a resolution agreement agreeing to create “a safe, nondiscriminatory learning environment for students who are transgender or do not conform to gender stereotypes.”
Office for Civil Rights Complaints
Downey Unified School District (CA) – OCR Resolution Agreement issued October 14, 2014: The complaint alleged descrimination based on sex. 1) transgender student born male subjected to different treatment
and harassment by District employees because of her gender identity and gender nonconformance; and
2) subjected to sexual and gender-based peer harassment and the District failed to provide a prompt and equitable response to the notice of harassment.
OCR investigated the complaint under its Title IX authority. Prior to the conclusion of the investigation, the District
expressed interest in voluntarily resolving the case and entered into a Resolution Agreement.
Downey Investigation
Transgender girl first informed District of her gender identity in kindergarten.
During the years K-5, the student continued to assert a female gender identity but had not made a gender transition to attend school as a girl – continued to use male name, pronouns, etc.
She began coming to school dressed as a girl in the fifth grade.
Complainant asserted that make-up was confiscated, had to write an apology letter for making male students uncomfortable by wearing make-up.
She was also discouraged from discussing her gender identity with her friends.
Downey Investigation
Complainant asserted that after her non-surgical gender transition, school pictures reflected the Student’s male name even though wearing a dress and used female name on the picture forms.
Frequently verbally harassed by her peers – “fag, whore, bitch,” etc.
After complaint, elementary administrators suggested she transfer to another school where no one knew she was a transgender girl.
Downey Investigation
Prior to start of middle school, Complainant requested to be called by female name and given option of using female restroom or staff restroom.
Middle school administrator receptive to her requests and she used female restroom and locker room without incident.
However, she continued to experience peer harassment, being called her former male name, and questioned often about her anatomy.
The District denied her request for school-wide assembly on gender-based harassment/bullying.
Downey Unified School District Resolution Agreement – October 2014 Memorializes the Student’s use of female-
designated facilities. District agrees to otherwise treat the Student as a
girl in all respects. District agrees to amend policies and procedures,
train staff, provide age-appropriate instruction to students, survey parents and students about harassment, and ensure appropriate supports for the Student and other transgender students who request it.
State Law Protections for Transgender Students (not exhaustive) Maine – Maine Human Rights Act Arizona – High School League recently approved its first
transgender athlete. California (August 2013) – Requires pupils be permitted to
participate in sex-segregated school programs and activities, including athletic teams and competitions, and use facilities consistent with their gender identity, irrespective of the gender listed on their pupil records.
Colorado, Hawaii, Illinois, Iowa, Maryland, Minnesota, New Jersey, New York, North Carolina, Oregon, Vermont, Washington and D.C. all have laws specifically protecting transgender students in public schools from harassment and/or discrimination.
Transgender Student Athletes
February 2014 – Virginia High School League adopted transgender student-athlete policy. When a school identifies a transgender student who seeks to
participate it must submit a letter requesting an appeal to the district chairman and VHSL Director.
A transgender student-athlete may compete in the gender of their birth certificate unless they have undergone sex reassignment.
A student-athlete who has undergone sex reassignment may participate in the re-assigned gender when the student has undergone the surgery (1) before puberty; or (2) after puberty under certain conditions: Surgical anatomical changes have been completed; Hormonal therapy is being administered in a verifiable manner and
for a sufficient length of time; and If student stops hormonal treatment, they will be required to
participate in sport consistent with birth gender.
Transgender Student Athletes
VHSL rule mirrors the International Olympic Committee requirements. Currently, 18 other states have transgender student-athlete policies,
although not all require gender reassignment surgery. Florida requires:
A written statement from the student affirming the consistent identity and expression to which the student self-relates;
Documentation from individuals such as, but not limited to, parents /legal guardians appointed by a court of competent jurisdiction, friends and/or teachers, which affirm that the actions, attitudes, dress and manner demonstrate the student’s consistent gender identification and expression;
A complete list of all the student’s prescribed, non-prescribed or over the counter, treatments or medications;
Written verification from an appropriate health-care professional (doctor, psychiatrist, and psychologist) of the student’s consistent gender identification and expression.
Case law
Doe v. Regional School Unit 26 (Also – Doe v. Clenchy)–Maine Supreme Judicial Court (January 30, 2014) Suit filed pursuant to Maine Human Rights Act (MHRA) –
prohibits discrimination based on sexual orientation in public accommodations, educational opportunities, employment, housing, and other areas.
Transgender female had been allowed to use girl’s restroom pursuant to a 504 plan that addressed her gender identity issues and upcoming transition to fifth grade – “gender dysphoria.” Gender dysphoria – medical term for psychological distress
resulting from having a gender identity different from the sex that one was assigned at birth.
In fifth grade a male student followed her into the restroom on two occasions claiming he was entitled to use it also.
Case law
Doe, continued. The Court had to consider the relationship between MHRA
and a provision of the state Sanitary Facilities law, which requires schools to provide clean toilets that are separated according to sex.
Court found that Sanitary Facilities law does not establish guidelines for the use of school bathrooms, rather it establishes cleanliness and maintenance requirements.
The school division’s decision to ban student from the girl’s bathroom, based not upon a change in student’s status but on other’s complaints, constituted discrimination prohibited by MHRA.
Case law
Doe, continued. Over the student’s parents’ objections, the school required
her to use the single-stall, unisex staff bathroom. The 504 team met again to discuss transition to middle
school and determined student would not use girl’s bathroom in middle school.
Court acknowledged that many of the school officials exhibited tremendous sensitivity and insight over several years, but the school came under intense public scrutiny which caused it to reconsider the steps it had taken and reverse course.
First time a state court declared it unlawful to deny a transgender student access to the bathroom that matches the gender with which she identifies.
Case law
Coy Mathis v. Fountain-Fort Carson School District 8 – June 17, 2013 decision of Colorado Division of Civil Rights Found sufficient evidence to find that the school district
“discriminatorily denied the Charging Party equal terms and conditions of goods, services, benefits, or privileges; equal treatment based on harassment; and the full and equal enjoyment of the goods, services, facilities, privileges, advantages or accommodations in a place of public accommodation due to the Charging Party’s sex and sexual orientation.”
Case law
Mathis, continued. Charging Party – six year-old transgender girl who
had, since 18-months old, non-verbally expressed her female gender identity through her likes and dislikes.
Between ages of 4 and 6 began articulating her belief that she was a girl.
Enrolled in kindergarten as a boy, but wore girl’s clothes, chose female playmates.
Between August 2012 and December 2012 (in first grade) – Charging Party used the girl’s restroom, accompanied by a female classmate without issue.
Case law
Mathis, continued. Superintendent found out and instructed the Principal to
inform the family that the Charging Party could no longer use the girl’s restroom, but could use the boy’s restroom or adult staff single-user restrooms. (changed to gender-neutral after the Mathis family left school). School district had received only one complaint from a former
district parent regarding her use of the girl’s restroom. The division of civil rights relied on the fact that Charging
Party identifies as female and possesses documents identifying her sex as female in finding that school district discriminated against student.
The evidence demonstrated that socially, legally and medically the Charging Party is considered female (without gender reassignment surgery), and therefore she was discriminated against.
Hypothetical
How would you handle the following: a school club is going on an overnight excursion underwritten by the parents, where they plan to bunk four students per hotel room. What accommodations if any would your school districts make for a transgender student in terms of sleeping arrangements?
Transgender Student Records
Arises often with transgender alumni seeking employment or applying to other educational institutions after graduation.
The Family Educational Rights and Privacy Act (FERPA) allows parents or eligible students to review education records and request that the school change records that are inaccurate, misleading or in violation of the student’s privacy. 1991 Family Policy Compliance Office opinion letter concluded that
FERPA does not apply to a transgender former student requesting a name and gender change in his or her education records.
Rationale is that the change is substantive decision of the school division. This rationale may be changing based on privacy standard.
Changing the records avoids the possibility of a discrimination claim and maintains the student’s privacy. By not changing the records, school is essentially disclosing that student’s transgender status to anyone who sees their records.
Transgender Student Records
Declining to update records is simple, consistent approach, less administrative burden.
However, not changing the records may cause the person viewing them to question the applicant’s honesty, forcing the individual to disclose their status.
If a district would amend or change a record for a change in name based on marital status, then it should process a name change based on gender status in the same manner.
It is not unlawful to require a court order or amendment of state/federally issued identification prior to changing records.
Trending
Non-binary students – neither male nor female, sometimes known as “genderqueer”. Genderqueer was one of 56 gender identity options added
to Facebook in February 2014. Pennsylvania school division reports that a student
requested to be called by a different name from the female name previously used and have all pro-nouns be non-gender specific.
Argument: the legal construct of how gender is tracked and recorded is Binary (male/female), therefore there is no legal authority for the accommodation requested.
Best Practices
Respond immediately to claims of harassment/bullying.
Permit use of facilities based on gender identification.
Provide training/professional development. Provide school-wide assemblies on gender-based
harassment/bullying.
Protections for Employees – Federal Law Title VII of the Civil Rights Act of 1964 (42 U.S.C. §
2000d et seq.) prohibits discrimination in employment on the basis of sex.
The Courts have been inconsistent about whether this includes discrimination based on gender-identity.
The Equal Employment Opportunity Commission (EEOC), has recently interpreted Title VII to include discrimination on the basis of gender identity.
No federal law expressly prohibits LGBT bias, despite Congress having proposed the Employment Nondiscrimination Act, prohibiting sexual orientation and gender identity bias in the workplace almost every year for past 20 years.
Macy v. Holder, Appeal No. 0120120821 (U.S. EEOC, Apr. 20, 2012).
In December 2010, Macy, a transgender woman then presenting as a man, applied for a Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) position at a crime laboratory.
Macy asserted that after a discussion of her credentials and experience, the director of the lab told her that position was hers, assuming no problems arose during her background check.
In March 2011, Macy informed the background check investigator that she was in the process of transitioning from male to female.
Five days later, she was told that the position was no longer available.
Three months later, Macy filed an EEOC charge against the ATF, alleging discrimination on the basis of her sex, gender identity, and sex stereotyping.
Macy v. Holder, cont’d
The EEOC held that gender-identity based discrimination is banned under Title VII.
The case then went back to the Department of Justice, which has jurisdiction over discrimination complaints against ATF.
On July 8, 2013, the DOJ issued its finding that “ATF discriminated against complainant based on her transgender status, and thus her sex.”
Lambda Legal and Freedom to Work
In July 2013, Lambda Legal and Freedom to Work announced that it had reached a settlement with a private employer, also a government contractor, on behalf of a Maryland transgender woman.
The woman filed a charge with the EEOC alleging that she was subjected to physical and verbal harassment in the workplace over a two year period, including comments such as "tranny," "drag queen," and "faggot."
Lambda Legal and Freedom to Work
The EEOC issued a letter with a determination of reasonable cause to believe the company violated Title VII of the Civil Rights Act, stating: The investigation revealed that Charging Party was
subjected to derogatory gender-based comments that were frequently made by both co-workers and supervisors. Both Charging Party and witness interviews revealed that Respondent's management failed to take corrective action despite being fully aware of the harassment Charging Party was being subjected to. This lack of corrective action enabled the harassment and offensive atmosphere to continue.
LGBT Bias Charges, Resolutions Up
EEOC Commissioner Feldblum shared at an October Employment Law Institute that in calendar year 2013 the EEOC received 834 charges raising allegations of sexual orientation discrimination (“GO”) and 199 charges alleging gender identity or transgender bias (“GT”). 417 resolved, 9 cause findings.
In first six months of 2014 – EEOC received 459 GO charges and 81 GT Charges, 11 cause findings.
Feldblum acknowledged that the increase has more to do with the change in the agency’s attitude toward the handling of such claims than with legal developments internally or in the courts.
Protections for Employees – State law
On January 4, 2014, Governor McAuliffe signed Executive Order Number 1, prohibiting discrimination based on sexual orientation and gender identity.
The Executive Order applied to all state agencies, not school boards.
Same-sex marriage is permitted in Virginia as of October 6, 2014.
Best Practices - Employees
Updating nondiscrimination policies to expressly include LGBT bias.
Training for supervisors and employees on gender-based discrimination and harassment.
Equal employee benefits to same-sex couples (possible special open enrollment for couples married prior to Virginia’s legalization of gay marriage).
Make sure updated nondiscrimination policies include a process for workers who are transitioning from male to female or vice versa, and information regarding name changes, and restroom use.
