Unless you’ve been living under a rock the last few days, you’re probably aware that the Supreme Court decided the case of Obergefell v. Hodges, holding that the Fourteenth Amendment requires states to license a marriage between two people of the same sex and to recognize marriages between two people of the same sex when a marriage was lawfully licensed and performed out of state.  Although this may only seem of importance or interest to a school district in terms of providing benefits to a same sex spouse, schools should also be prepared for the effect of all the rhetoric and incendiary speech on student interactions in the school setting.

What about bullying and the transgender student? Bullying statistics uniformly indicate that LGBT (Lesbian-Gay-Bisexual-Transgender) students are at higher risk for bullying.  StopBullying.gov provides some suggestions on how to provide a safe school environment for students who are at a higher risk for being bullied because of perceived differences.

Transgender children may have even more of a risk because their identification with the opposite sex can lead to physical and sexual attacks when they are discovered utilizing the restroom or locker room of the sex with which they identify instead of their biological sex.   In “Which Way to the Restroom?  Respecting the Rights of Transgender Youth in the School System”[1] authors Bowers and Lopez cite to studies indicating that students expressing a “transgender identity or gender non-conformity while in grades K-12 reported alarming rates of harassment (78%), physical assault (35%) and sexual violence (12%).”  The level of bullying and harassment was severe enough that about 15% of these students did not complete their education.[2] The Department of Justice has begun intervening on behalf of the transgendered student in cases filed by the child. Click on the link to see one such intervention, Grimm v. Gloucester County School Board.

Administrators, teachers, and staff members need to be aware that the protection of their students in the K-12 setting trumps personal feelings and religious convictions in opposition to the child’s gender identity or gender preference.  The District’s anti-bullying policies must be strictly upheld to prevent bullying because of the child’s presentation as a member of the opposite sex.  Recommendations are:

  • Encourage parents to notify the school of a transgender child with their preferences regarding the child’s name, restroom use.
  • Allow the child to be addressed by the name the child/parent prefers
  • Allow the child to dress as the sex with which the child identifies (but the child must still conform with the school’s dress code for a child of that sex),
  • Allow a child to use the restroom facilities of the sex with which the child identifies, but to have the option of closed stalls in the restrooms or a single stall unisex restroom option.
  • Train administrators, teachers, and staff regarding transgender children. The training should include directives against expressing their personal beliefs/religious beliefs about transgender individuals in the classroom, school grounds, or other school areas where they may be over heard by students.  Administrators, teachers and staff need to be reminded that they are required to comply with school policies to treat students with respect and they are not to degrade the child, refer to the child as “it” or “abomination,”  insist on referring to the child by the child’s biological sex, or in any other way separating out that child from the other children.

Given the fluid nature of the legislation, the case law, the Office of Civil Rights guidelines on Title IX and Sexual violence, and the fact heavy nature of each case, if you have questions regarding a transgendered child at your school, discipline of employees for violating the child’s rights, or discipline another child for bullying, you should contact your school attorney for guidance.

This blog should be used for informational purposes only. It does not create an attorney-client relationship with any reader and should not be construed as legal advice. If you need legal advice, please feel free to contact Candyce B. Pardee at  928.373.3409, log on to udallshumway.com,  or contact an attorney in your area.

[1] “Which Way to the Restroom?  Respecting the Rights of Transgender Youth in the School System”, Grant Bowers and Wendy Lopez, Toronto District School Board, National School Board Association 2012 seminar.

[2] Id. at page 10.