On May 13, 2016 the United States Department of Justice Civil Rights Division in conjunction with the United States Department of Education Office for Civil Rights (more commonly referred to as the “OCR”) issued a publication entitled the “Dear Colleague Letter on Transgender Students.” A “Dear Colleague Letter” is typically sent by the United States Department of Justice to outline its general approach on an unclear issue or to provide insight into its interpretation of the law for the purposes of enforcement. A “Dear College Letter” does not carry the weight of law, however it is typically granted broad deference by courts charged with overseeing matters within the jurisdiction of the United States Department of Justice. The purpose of this article is to explore the implications of the United States Department of Justice’s position with regards to State of Arizona school district obligations to honor the gender identity choices of transgendered students. Please note that this article is not meant to provide legal advice and it is strongly advised that the reader contact the reader’s legal counsel with any questions. But, this may help you to understand a bit more about the topic of transgender gender identity and the Arizona Parent’s Bill of Rights
In order to understand the United States Department of Justice’s approach on the topic of transgender students it is important to first understand the operative definitions. Please note that all definitions referred to herein are taken from the above mentioned May 13, 2016 letter. “Gender identity” is defined as “an individual’s internal sense of gender.” The reader will note that this definition is entirely subjective and is not dependent on any objective factors such as genetic testing, official birth records, or other forms of testing.
A person’s gender identity may be different from the sex assigned at birth. “Sex assigned at birth” is defined as “the sex designation recorded on an infant’s birth certificate should such a record be provided at birth.” These sexes are traditionally designated as male or female and the determination is usually made based on objective factors.
The term “transgender” is defined as,
“those individuals whose gender identity is different from the sex they were assigned at birth. A transgender male is someone who identifies as male but was assigned the sex of female at birth; a transgender female is someone who identifies as female but was assigned the sex of male at birth.”
It is important to note that the distinction is based on an individual’s subjective identification with a gender different than the sex which was objectively assigned at birth. Gender identity is a matter of choice, not of defensible objectively measurable criteria.
Finally, “gender transition” is defined as,
“the process in which transgender individuals begin asserting the sex that corresponds to their gender identity instead of the sex they were assigned at birth. During gender transition, individuals begin to live and identify as the sex consistent with their gender identity and may dress differently, adopt a new name, and use pronouns consistent with their gender identity. Transgender individuals may undergo gender transition at any stage of their lives, and gender transition can happen swiftly or over a long duration of time.”
It is important to note that the process of gender transition is not uniform. An individual may choose to express such a transition in a multitude of ways, and the accommodation of a student during the process of transition will require an individual assessment in place of rigid rules or guidelines.
State of Arizona school districts, as a condition of receiving Federal funding, are required to agree that they will not “exclude, separate, deny benefits to, or otherwise treat differently on the basis of sex any person in its educational programs or activities unless expressly authorized to do so under Title IX or its implementing regulations.” See DOJ May 13, 2016 letter, page 2. As discussed above, the determination of gender identity is subjective. The United States Department of Justice outlines that its interpretation of an Arizona school district’s Title IX obligations requires “that when a student or the student’s parent or guardian, as appropriate, notifies the school administration that the student will assert a gender identity that differs from previous representations or records, the school will begin treating the student consistent with the student’s gender identity.” Id, Emphasis added. It is the determination of which party is the “appropriate” party for the determination of gender identity which presents a difficult issue for Arizona school districts.
Arizona Revised Statues (“A.R.S.”) §1-601 outlines the parents’ rights protected by the Arizona Legislature. A.R.S. §1-601 states,
“A. The liberty of parents to direct the upbringing, education, health care and mental health of their children is a fundamental right.
- This state, any political subdivision of this state or any other governmental entity shall not infringe on these rights without demonstrating that the compelling governmental interest as applied to the child involved is of the highest order, is narrowly tailored and is not otherwise served by a less restrictive means.” Emphasis added.
The term “upbringing” is not defined in statue and could reasonably be interpreted broadly enough to include the determination of gender identity by a minor student. If the term “upbringing” is judicially determined to include the determination of gender identity, then under State of Arizona law the “appropriate” party for making the gender identity determination for a minor child will be the parent or guardian.
This may conflict with the United States Department of Justice’s interpretation of an Arizona school district’s obligations under Title IX. The Department’s view is that a student could be the “appropriate” party to make a gender identity determination. The Department does not provide any guidance as to what will, or will not, be considered “appropriate”, leaving the door open to a situation where the Department asserts that a student is the “appropriate party” and the State of Arizona mandates that the parent or guardian’s decision controls.
At this early phase there is no guidance from the State of Arizona or the United States Department of Justice as to how to address a conflict between a student’s gender identity determination and the direction of that student’s parent or guardian. It is important that if an Arizona school district is faced with this conflict that it contact its legal counsel to develop a course of action designed to protect the rights of student as well as the rights of the parent or guardian and not rely on rigid policy or rule determinations to settle the matter.
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 regarding Transgender Gender Identity and the Arizona Parent’s Bill of Rights, or any other estate planning matters, please feel free to contact at 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.