Freedom from discrimination based on sex is a right. However, when a person whose gender identity, gender expression, or behavior does not conform to that typically associated with the sex to which they were assigned at birth, respecting this right can become complicated, especially in a school setting.
This issue is problematic because it places school boards in a position of balancing the newly developing rights of transgender students against the established rights of other students and parents.
Some of the Key Issues that Districts Face
Access to Bathrooms
The first category, access to bathroom facilities, is one of the most common concerns raised by school staff. Districts are increasingly faced with requests for access to bathroom facilities that align with a student’s actual or perceived gender identity. Currently in Pennsylvania, transgender students do not have the legal right to use the bathroom of the opposite biological sex. However, this may soon change because the law is still developing in this area. In some District’s, teachers and parents have been able to work together to make the best determination for the student. Nevertheless, some parents of non-transgender students may object to this determination on the basis that their own child’s privacy is being invaded. In resolving these issues, advocacy groups have recommended reaching a “safe and non-stigmatizing alternative” that alleviates the discomfort of affected students and their parents. Proposed alternative solutions include: separate changing schedules, adding a partition or curtain, or giving the student the choice of using a private bathroom.
A District’s decision to either allow or prohibit a student from participating in gender-segregated athletic programs based on the student’s actual or perceived gender identity may also present a contentious issue. For example, in 2014 the Minnesota State High School League postponed issuing a transgender-inclusive athletic policy due to opposition from a local special interest group. The policy was expected to pass in October of 2014 until a full-page advertisement appeared in the Minnesota Star Tribune decrying the “end” of girls’ sports. The policy was eventually released in December; however, it requires that students provide some measure of “proof” of the student’s “sincerely held gender-related identity.” Similarly, in early 2014 the Virginia High School League, which oversees athletic programs at 313 public high schools in Virginia, unanimously approved a new policy governing the inclusion of transgender athletes in school sports programs. In order to participate, the student must have undergone sex reassignment surgery and hormonal therapy to “minimize gender-related advantages in sports competition.”
Finally, some schools have voiced concern over student records, privacy, and relevant Family Educational Rights and Privacy Act (FERPA) requirements. Under FERPA, current and former students may request that their student records be amended if the records are “inaccurate, misleading, or in violation of the student’s rights of privacy.” Thus, under federal law, a transgender student may seek to amend his or her student records so that the gender listed corresponds to the student’s current gender identity. However, these requests are not always granted because FERPA ultimately leaves it to the school district to “decide whether to amend the records as requested within a reasonable time after [the district] receives the request.” Due to this statutory discretion, civil rights organizations have urged schools to develop policies that respect the privacy rights of transgender students by accommodating these FERPA requests. They argue that districts that refuse to grant these requests may open themselves to Title IX discrimination investigations by U.S. Department of Education given the Department’s recent guidelines on student rights. As a result, districts may be unsure of the proper course of action. Unfortunately, the means to navigate these concerns, as well as any issues of liability, will remain unclear until Congress is able to revisit federal statutes, and, in particular, Title IX. Furthermore, despite recent federal agency interpretations, state protection from discrimination can vary from state to state depending on the actions of state legislatures and local school districts.
School administrators should be aware of the momentum towards a broader understanding of gender-based anti-discrimination laws and should ensure that their school policies adequately protect all students from discrimination, harassment and bullying. Please contact MBM if you have any questions about understanding the gender-based anti-discrimination laws and/or need assistance with reviewing your policies to ensure that they correctly address potential transgender issues.