What rights do transgender students have on campus? That is a question many school districts, school attorneys, parents, state legislatures, and courts have been asking lately. The National Center for Transgender Equality reports that 59 percent of transgender students have been denied access to restrooms consistent with their gender identity. Other potential complaints could arise if a transgender student is denied opportunities to go on field trips or participate in sports.
In fact, according to the U.S. Department of Education, transgender youth are protected from discrimination under federal law. In April of 2014, the Department of Education issued a guidance document titled, “Questions and Answers on Title IX and Sexual Violence.” In that guidance, the DOE made it clear that transgender students are protected under Title IX of the Civil Rights Act of 1972, a federal civil rights law that prohibits discrimination on the basis of sex in federally funded education programs and activities. According to the DOE, transgender youth report high rates of sexual harassment and violence. Thus, districts must investigate and resolve allegations of harassment against transgender youth in the same manner that they would for any student.
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Again, in December of 2014, the DOE issued another memorandum, in which it stated: “All students, including transgender students and students who do not conform to sex stereotypes, are protected from sex-based discrimination under Title IX. Under Title IX, a [school district] must treat transgender students consistent with their gender identity in all aspects of the planning, implementation, enrollment, operation, and evaluation of single-sex classes.” While the memo’s focus was on extracurricular activities and same-sex classrooms, the DOE made it clear that, to avoid running afoul of Title IX, districts need to treat transgender students consistent with their gender identity. Despite this guidance some Texas lawmakers this year introduced bills that would have prohibited transgender students from using bathrooms based on the gender to which they identify. The proposed legislation, so-called “Bathroom Bills,” did not gain any traction this legislative session.
School districts and universities alike are implementing policies to address the rights of transgender students. For guidance, Texas school districts can look to legal and local policy FFH “Student Welfare: Freedom from Discrimination, Harassment, and Retaliation.” For example, Dallas Independent School District’s FFH policy prohibits discrimination, harassment, and retaliation based on gender identity. School districts that have not already done so, should examine their FFH policies, student codes of conduct, and student handbooks to ensure that they align with the Department of Education’s stance on this issue. Training on discrimination, harassment, and retaliation should also include the issue of transgender students.
What should school officials do when faced with requests from transgender students and parents? The basic rule is just what the DOE said: “treat transgender students consistent with their gender identity.” As a result, districts generally should allow students to identify themselves in their preferred gender, including using first names and gender pronouns. This also may mean that, to the extent possible, allowing students access to restrooms and locker rooms consistent with their gender identity. Some districts have offered private bathroom and changing facilities, but districts must ensure that the separate facilities cannot be viewed as discriminatory or punitive in nature. It would be wise to check with your local legal counsel on the best approach to take to address specific accommodation requests. This is a rapidly evolving area of the law and we are likely to get more guidance on this issue from the DOE, the courts, and perhaps UIL. Stay tuned.