State, U.S. government and NSBA provide transgender guidance
June 9, 2016
Schools have seen transgender issues emerge as one of the biggest challenges of 2016, and accordingly, new resources are providing guidance.
The Oregon Department of Education (ODE) defines gender identity as “[a] person’s internal sense of being male or female or some other gender…”
Other ODE definitions include:
- Transgender individuals are those whose “gender identity, gender expression, or behavior does not conform to that typically associated with the sex to which they were assigned at birth.”
- Cisgender individuals are “people who, for the most part, identify with the sex they were assigned at birth.”
- A transgender female is “a person whose assigned sex at birth is male but identifies and lives as a female.”
- A transgender male is “a person whose assigned sex at birth is female but identifies and lives as a male.”
On May 5, the Oregon Department of Education (ODE) released Guidance to School Districts: Creating a Safe and Supportive School Environment for Transgender Students. The 15-page document includes federal and state laws, common terminology and recommended procedures. This guidance came a few weeks after the National School Boards Association released 2016 Transgender Students in Schools, and was followed by joint guidance from the U.S. Departments of Education and Justice in the form of a Dear Colleague Letter and Examples of Policies and Emerging Practices for Supporting Transgender Students.
As is noted in some of these documents, Oregon relies on two sets of laws regarding gender identity. As in other states, school districts receiving federal funding are obligated to follow federal law. This includes Title IX.
Most of us think of athletics when we hear Title IX, but Title IX has recently been at the heart of the discussion regarding transgender protections throughout the country. Title IX prohibits discrimination “on the basis of sex.”
The Office of Civil Rights (OCR) has determined that this protection extends to transgender individuals. OCR stated in a letter to a California district “all students, including transgender students and students who do not conform to sex stereotypes, are protected from sex-based discrimination under Title IX.” OCR further explained their position in an FAQ, “[u]nder Title IX, a recipient generally must treat transgender students consistent with their gender identity in all aspects of the planning, implementations, enrollment, operation, and evaluation of single-sex classes.”
Opponents have challenged this idea, saying that letters and guidance from OCR or other agencies do not carry the weight of law and such enforcement and implementation is an overreach of power. The federal Court of Appeals for the Fourth Circuit recently decided a case on this issue, granting OCR interpretation “controlling weight.”
Unlike some other states, Oregon has state statutory protections in place. Oregon Revised Statute (ORS) 659.850 prohibits discrimination in schools on the basis of “race, color, religion, sex, sexual orientation, national origin, marital status, age or disability.” Sexual orientation is defined in ORS 174.100(7) as “an individual’s actual or perceived heterosexuality, homosexuality, bisexuality or gender identity…”
These Oregon laws protect students and staff at Oregon schools. ODE has advised that “[a] student who says she is a girl and wishes to be regarded that way throughout the school day should be respected and treated like any other girl.” The same is true for a student who expresses a desire to be treated like a boy.
The guidance that has been released in recent months is consistent with procedures that have been in place in numerous districts for years and with recommendations that have been provided by OSBA and Property and Casualty Coverage for Education (PACE). Some of the major questions come around pronouns, records and name changes, bathrooms and locker rooms, privacy rights of all students and what policies a district needs to have in place.
Pronouns, records and name changes
When a student or staff member requests that a nickname or pronouns be used, the school should accommodate that request. This may include changing the name used on records, including roll sheets that are provided to substitute teachers. It is important that the school not inadvertently reveal a student’s transgender status. Districts should follow the guidance provided by ODE for specific instructions on how to handle records issues.
Bathrooms and locker rooms
Perhaps the most public transgender battles throughout the country relate to the use of bathrooms and locker rooms. Students and parents on both sides of the issue have raised concerns. Oregon districts have dealt with these issues, although there is no binding Oregon court decision to provide direction.
There are, however, court cases from other states that offer some guidance and show how a court in Oregon might decide the issues. In Doe v. Regional School Unit 26 (2014 ME 11 (2014)), the court applied Maine state law to a transgender female’s use of elementary school bathrooms. The girl had used the girls’ bathroom until a boy followed her there and demanded access.
The school became worried and required the girl to use a private single-stall restroom. The Maine Supreme Judicial Court determined that based on Maine law, the school unlawfully discriminated against the girl. Maine law is very similar to Oregon’s, prohibiting discrimination based on sexual orientation, which includes gender identity.
Another well-known situation came out of a school district in Illinois. A transgender female was referred to using the feminine pronouns, used girls’ bathrooms and even played on girls’ athletic teams. But the district refused to allow her unrestricted access to the girls’ locker rooms.
OCR demanded that the district allow her access and threatened to withhold funding if it did not. After hours of deliberating, an agreement was reached to allow the girl access to the locker rooms where she would change in a private changing station.
Perhaps the most publicized case has come out of Virginia, G.G. v. Gloucester County Sch. Bd., No. 15-2056, slip op. (4th Cir. Apr. 19, 2016). In this case, a transgender male attended a school that permitted him to use the boys’ bathroom.
The school board then passed a policy segregating bathroom use by “biological gender.” The trial court found that Title IX did not require that transgender individuals be allowed to use the bathrooms that aligned with their gender identity. On appeal, that decision was reversed, finding for the student and deferring to OCR guidance in the interpretation of Title IX.
Privacy rights of all students
One of the most common concerns resulting from transgender individuals using bathrooms and locker rooms that align with their gender identity is the privacy rights of cisgender students in those facilities. Privacy of all students must be a primary concern for all schools nationwide. In addressing these concerns, schools should make alternative facilities, such as a single-stall restroom or stalls or curtains in a locker room, available for all students who desire additional privacy.
The safety of all students should also be a priority. If a school is aware of bullying, harassment, or other safety threat to any student, the school must take prompt action to reduce the risk.
At OSBA, staff are often asked for sample policies regarding transgender students, or asked when transgender policies will be released. The answer is: Schools don’t need a separate transgender policy.
Most districts have a nondiscrimination policy, typically found in policy AC. This policy prohibits discrimination based on a variety of groups, or protected classes, including sexual orientation.
Such policies also may include a footnote that notes the inclusion of gender identity within sexual orientation under Oregon law. Just as separate policies are unneeded for each of the other protected classes (color, religion, age, etc.), schools don’t need a separate policy prohibiting discrimination based on transgender status.
Some other states or districts are adopting transgender policies. The majority are coming in states that do not have laws protecting transgender individuals, and may not include them in the nondiscrimination policies.
OSBA is currently working with PACE to provide additional guidance to school administrators as they develop internal procedures that will be needed to comply with applicable laws and in protecting the rights and safety of all students. Districts may choose to provide training to staff and/or students regarding transgender issues.
The information contained in this article should not be construed as legal advice. Any specific questions can be directed to Spencer Lewis at OSBA, or to ODE.