Transgendered Students: Keeping Up with the Changes

Perhaps no area of law is changing more quickly than that involving LGBT individuals.  As exemplified by two seminal U.S. Supreme Court decisions addressing the status of gay couples, United States v. Windsor, 570 U.S. 12 (2013) and Obergefell v. Hodges, 135 S.Ct. 1039 (2015), the legal status and rights of gay individuals has changed dramatically in a short time.  A similar sea change is happening in the area of education law and transgendered students.  Whereas several years ago few schools had openly had to address rights and protections for transgendered students, it is becoming increasingly clear that the U.S. Department of Education, Office for Civil Rights (“OCR”) will now find that schools have a duty to ensure that transgendered students are safe from bullying and have the right to be educated as a student with a different gender than that which was assigned at birth.

There is no legal definition of “transgender” as it applies in a school setting.  However, an adequate working definition is that transgender describes a person whose gender identity or expression is different from that traditionally associated with the assigned sex at birth.  A student can be considered transgender if he or she consistently asserts a transgender identity at school.

As early as October 26, 2010, OCR indicated in a Dear Colleague Letter (“DCL”) that it would interpret Title IX of the Education Amendments Act of 1972 to include protections from harassment on the basis of sexual orientation.  In a June 14, 2011 DCL, OCR reiterated that harassment and bullying would not be tolerated on the basis of sexual orientation or gender identity and pointed out that schools were required to allow LGBT students to have equal access to all extracurricular activities, including being allowed to form clubs that focus on issues related to LGBT students, sexual orientation, or gender identity. Finally, in its lengthy guidance on Title IX and Sexual Violence, published on April 29, 2014, OCR issued a strong statement that all public schools would be expected to treat same-sex and gender identity sexual violence with the same standards for enforcement and protection as it did sexual violence between members of the opposite sex.

State court cases, including one in Maine, and OCR settlements, including at least two in California (see Resolution Agreement, Downey Unified School District OCR Case No. 09-12-1095 as one example), indicate that public school districts and charter schools should preempt legal issues by drafting and implementing policies addressing protections for transgender students.  Those policies should address at least the following areas:

  • Names: Arizona law requires that the name on a student’s birth certificate be the name used on official education records. R.S. § 15-818(D).  However, schools should create a procedure to allow a transgender student to be called by the name of his/her choice on non-official records and in classes.
  • Bathrooms: OCR will expect that a student will be allowed to use the students’ bathroom that corresponds with the transgendered student’s gender identity. If the student and/or his/her parents are concerned about the safety of a transgender student using a students’ bathroom, the school will likely need to arrange to have the student use a single stall bathroom, though a school should NOT require a transgender student to use a different bathroom than his/her peers.
  • Locker rooms: arrangements should be made so that a transgender student can safely and comfortably use the locker room that matches the student’s gender identity.
  • Athletics: schools will need to consult with the Arizona Interscholastic Association to ensure that it is meeting that organizations rules and regulations. Regardless, schools will be expected to provide athletic opportunities to all students regardless of gender identity or sex.
  • Dress codes: transgender students should be permitted to adhere to dress code policies related to the gender with which the student identifies.
  • Harassment/bullying: all districts and charter schools should have a complaint process and investigation policy for harassment of students and it must extend to transgender students. When a school has a transgender student, it should take proactive steps to ensure that adult staff are particularly vigilant in watching for gender-identity based harassment and bullying and should take steps to address it immediately if it occurs.

By adopting and enforcing policies related to these issues, charter schools and districts will avoid confusion and potential legal missteps when a school gets its first request for accommodation, or report of bullying, for a transgendered student.

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 480.461.5300, log on to udallshumway.com, or contact an attorney in your area. Udall Shumway PLC is located in Mesa, Arizona and is a full service law firm. We assist Individuals, families, businesses, schools and municipalities in Mesa and the Phoenix/East Valley.