In July of 2015, the New York State Education Department issued a document entitled “Guidance to School Districts for Creating a Safe and Supportive School Environment for Transgender and Gender Nonconforming Students.” The guidance seeks to ensure that every student, regardless of sex, gender identity, or expression, is able to learn in a safe educational environment free from discrimination, which is in compliance with local, state, and federal law.
While the guidance does not apply as a requirement for Michigan school districts, it is – nonetheless – an interesting look at how one department of education has addressed this emerging issue. This guidance includes the following tips and recommendations to school districts:
- Inform themselves of the proper definitions of transgender terms and ask the transgender student which terms the student prefers to be used.
- Recognize that rates of bullying and harassment are higher among transgender and gender-nonconforming (GNC) students and implement appropriate policies.
- Work with the student on a case-by-case basis regarding confidentiality. Some students may not want to inform their parents of their transgender status. Establish a plan with the student to maintain the student’s safety which also includes how to properly refer to the student in communications with parents or guardians.
- Accept the student’s assertion of his/her/their own gender identity.
- Other resources may be used to confirm a student’s gender identity, such as a letter from an adult, a family member or friend, clergy, counselor, or medical provider. However, in most cases nothing beyond a statement from the student should be required.
- There should be no threshold medical or mental health diagnosis or treatment required to have a student’s gender identity or transition process recognized by the school.
- Refer to the student with the pronouns that the student prefers. A memorandum sent to the student’s teachers regarding proper pronoun use may be helpful. School officials and staff must act as role models in proper pronoun use.
- The student’s birth name should be kept confidential. The district should only allow access to the student’s confidential record by those who have a legitimate educational interest. Records with the student’s birth name should be kept in a separate, confidential file, and the student’s education records should be updated to include the student’s preferred name.
- School nurses and other medical providers should use the student’s chosen name when dealing with the student, but may use the student’s birth name when necessary to ensure the student receives proper care, to coordinate proper health care with other medical providers, and to file health insurance claims.
- Districts should try to eliminate gender-based activities, rules, policies, and practices to the extent that they are marginalizing to transgender or GNC students. For example, a school that has boys and girls wear different color graduation commencement gowns may change their policy to have all students wear the same colored gown.
- Transgender students should be allowed to use the restroom of the gender to which they identify. Alternative accommodations, such as single sex bathrooms or private changing areas, may be made available to students who request them, but should not be forced upon any student.
- Where physical education classes are separate for each gender, the student should be allowed to participate in the class of the gender to which he or she identifies.
- Student leaders and school officials should become familiar with law, guidance, and resources and act as role models within the school.
This guidance issued by the New York State Department of Education is not law and does not have any binding authority. However, the Department recognized that these issues are becoming more prevalent in New York schools and the rate of harassment and bullying amongst transgender and GNC students is increasing. Therefore, the guidance was issued to help and inform New York school districts when they have to face these types of issues. Other states may use this resource as a guide to dealing with similar issues when they occur in other states as well.
In the same month that this guidance was issued, a lawsuit filed by a transgender student in Virginia is progressing through U.S. District Court. In December of 2014, the Gloucester County School Board voted to require all students to use the restroom associated with their physical sex. The transgender student, a 16-year old transgender boy, filed suit against the school district arguing that the bathroom policy was unconstitutional. The American Civil Liberties Union (ACLU) filed this suit on behalf of the student and argues that the bathroom policy violates Title IX because it discriminates on the basis of sex, which the ALCU argues includes gender identity and transgender status. The District argued that transgender is not a constitutionally-protected class and that the school took multiple steps to accommodate the student’s transition, including changing his name in his records, using male pronouns, allowing him to use a home-bound physical education program, and providing access to a private, unisex bathroom.
The student moved for a preliminary injunction requiring the District to allow him to use the boys’ bathroom in the fall while the case proceeded. The judge stated it was “highly unlikely” that he would grant the injunction and dismissed the student’s Title IX claims because Title IX allows schools to have separate bathrooms for each sex. A trial date to decide the constitutionality of the school board policy will be set soon. If the judge rules in favor of the student, it will be the first time that a federal court will declare that restricting transgender student bathroom use is discriminatory.