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Transgender Students & Employees on Your Campus: What Are Their Rights?

This page will be used to update you on cases and guidance as they become available in this emerging area of School Law.

Bathroom Bill Dies in Special Session

This week, the Texas Legislature ended its special 30-day summer session without lawmakers passing the “bathroom bill”, a controversial measure that sought to bar transgender people from using the public restrooms associated with their gender identity.

The bill, which was the most hotly debated initiative during the regular legislative session, was the primary driver behind Gov. Greg Abbott’s decision to call a special session in the first place.

If it had passed, the “bathroom bill” would have required transgender individuals to use the public restrooms that matched the genders listed on their birth certificates, instead of the restrooms matching the genders with which they identify.

Critics of the bill blasted it for being “discriminatory” and said it violated the human rights of transgender people. Sarah Kate Ellis, president and CEO of GLAAD, a national LGBT rights group, told USA Today that the bill’s failure in the special session was a win. “Today’s victory shows what can happen when transgender Americans and their allies stay vigilant and push back against legislation that helps no one and harms many,” she said.

Supporters of the bill claimed the measure would protect citizen privacy and safety, particularly in public schools. In a press conference, Lt. Gov. Dan Patrick said, “[Texans] don’t want their children showering together, boys and girls in the 10th grade, sharing locker rooms and restrooms … and women want to be protected.”

Lawmakers could elect to revisit the bill during the 2019 legislative session.

Bathroom Bill highlights difficulties changing birth certificates

While debate on the Bathroom Bill continues, some transgender men and women, who fear for their safety, say they would consider updating the gender on their birth certificates to reflect the gender they identify with, but are finding the process to do so to be challenging and expensive.

The Texas Tribune recently spoke to several transgender men and women who say that they feel so unsafe using the bathroom associated with their birth gender at their schools that they often try to avoid using the restroom altogether. While one option might be to go through the State to update their gender on their birth certificate, in Texas changing one’s gender identity on a birth certificate requires a certified court order, which can be time consuming and costly to obtain, as they require doctor’s notes in addition to filing fees. And even if one is able to afford the legal and medical costs, many judges are reluctant to grant such an order to a minor.

And Claire Bow, an Austin-based attorney, told the Tribune that the issue is far more complex.

According to the Tribune she said:
“The important thing to understand is it’s never the first step in the process,” Bow said of amending birth certificates or IDs. Bathroom bills assume that every transgender person has “gone all the way through the process” or have reached the point in treatment at which their doctors and therapists will sign off on the letter needed for court. “That’s why this is hard,” she added. “Nobody wakes up one day…and changes their sex.”

Read the full story here.

Law School Association Boycotts Texas Over Bathroom, Sanctuary Bills

The Association of American Law Schools announced that they would be moving a 2018 conference from Austin to Chicago, following the Texas Legislature’s passage of the controversial Bathroom Bill and another bill banning sanctuary cities in the state.

Last Friday, following months of heated debate and hours of testimony that day, the Texas Senate Affairs Committee voted 8 to 1 to pass a bill that restricts transgender individuals to only use public bathrooms associated with their biological gender instead of their gender identity. The bill has been widely criticized by human rights advocates for being discriminatory, as well as posing safety concerns for transgender individuals.

The President of AALS, Paul Marcus, sent a letter to Texas lawmakers last week, saying that the group would be moving its 2018 Conference on Clinical Legal  Education from Austin to Chicago and would not be considering Texas as a host for any future meetings or conferences.

“We made these decisions, nonetheless, because we are deeply concerned with the legislative actions taken recently in your state,” Marcus wrote. “AALS bylaws specifically prohibit ‘discrimination or segregation on the grounds of race, color, religion, national origin, sex, gender (including identity and expression), sexual orientation, age, or disability. We hope that our action will encourage Texas state lawmakers to reconsider these policies. We look forward to returning to Texas when they do.”

Read the full story on Texas Lawyer.

Court Sides With Transgender Student Allowing Him To Use Boys’ Restroom At School

The Seventh Circuit Court of Appeals in Chicago issued a decision siding with a transgender student who filed suit over using the boys’ bathroom at school.   Ashton Whitaker, a high school senior, is a transgender male who asked to use the boys’ restroom at school.  The District, however, denied the request because it believed that Ashton’s mere presence would invade the privacy rights of his male classmates.  The suit was brought under Title IX of the Education Amendments Act of 1972 and the Fourteenth Amendment’s Equal Protection Clause.  The student also asked for an injunction, claiming that the denial of access to the restroom was causing him harm, because having to avoid the restroom exacerbated a medical condition that rendered him susceptible to fainting and/or seizures.  He also claimed it caused him educational and emotional harm, including suicidal ideations.  The trial court denied the District’s motion to dismiss and granted an injunction allowing him to use the boys’ restroom.  The District appealed.

On appeal, the District requested that the Court of Appeals reverse the trial court’s decision to grant the injunction, arguing that transgender students are not protected under Title IX and that the District can overcome the Fourteenth Amendment claim because it has a rational basis to support the bathroom policy – the need to protect other students’ privacy.  The District also argued that the harms to the student were outweighed by the harms to the student population and their privacy interests.

The Court of Appeals rejected the District’s arguments.  According to the appeals court, a “policy that requires an individual to use a bathroom that does not conform with his or her gender identity punishes that individual for his or her gender non-conformance, which in turn violates Title IX.”  The policy also subjects transgender students to different rules, sanctions, and treatment than non-transgender students, in violation of Title IX.  The District’s gender neutral alternatives also violated Title IX, according to the court of appeals, because of their distant location to Ashton’s classrooms and the increased stigmatization they caused.

The 7th Circuit also upheld the ruling in favor of the student on his Equal Protection claim.  The Equal Protection Clause of the Fourteenth Amendment “is essentially a direction that all persons similarly situated should be treated alike” and protects against intentional and arbitrary discrimination.  Generally, state action will be upheld if the classification drawn is rationally related to a legitimate state interest.  However, according to the Court, the rational basis test does not apply when a classification is based upon sex.  Instead, sex-based classifications are subject to a heightened scrutiny requiring a showing that the “classification serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives.”

The court of appeals observed that, because the District’s bathroom policy could not be stated without referencing sex, the policy was inherently based upon a sex-classification and, therefore, heightened review applied.  The policy also treated transgender students, who fail to conform to the sex-based stereotypes associated with their assigned sex at birth, differently.  These students are subject to discipline if they violate the bathroom policy.  The District did not demonstrate a valid privacy interest, aside from “sheer conjecture and abstraction,” according to the Court.  In fact, there was no evidence that the District received any student complaints about Ashton’s use of the boys’ restroom.  Ultimately, the Court held that a “transgender student’s presence in the restroom provides no more of a risk to other students’ privacy rights than the presence of an overly curious student of the same biological sex who decides to sneak glances at his or her classmates performing their bodily functions…. Nothing in the record suggests that the bathrooms at Tremper High School are particularly susceptible to an intrusion upon an individual’s privacy.”  Because the District failed to demonstrate genuine privacy concerns or harm to the student population, the 7th Circuit upheld the injunction allowing the student to use the boys’ restroom.  The 7th Circuit has no jurisdiction over Texas and, therefore, this decision is not binding on school districts in Texas.  However, this case may demonstrate a trend that other Courts may follow in similar cases brought by transgender students.   The case is Whitaker v. Kenosha Unified School District, Dkt. No. 16-3522 (7th Circuit May 30, 2017).

Texas lawmakers pass controversial ‘bathroom bill’

Note: As of Wednesday morning, the House version of the bill is back with the Senate, where lawmakers are fighting to resurrect their version of the bathroom bill (SB6), which would apply the restrictions on transgender bathroom usage to any public restroom in the State of Texas. For the latest updates, visit the Texas Tribune.

After months of heated debate, lawmakers in Texas passed a bill last night that would prohibit transgender students in public schools from using bathrooms and locker rooms associated with their gender identity, limiting them to those associated with the gender listed on their birth certificates or single-stall bathrooms.

The bill is expected to clear final passages in the House and Senate this week and head to Governor Greg Abbott’s desk this Friday.

Some opponents of the bill call it discrimination on par with Jim Crow-era laws segregating blacks and whites. Supporters of the measure say it provides guidance to school districts and provides accommodations for all student groups.

The measure approved by the House was narrower than Senate Bill 6, which would have applied these restrictions to public restrooms in any facility in Texas. As debate around that bill stalled, House members decided to tack the bathroom provision as an amendment onto Senate Bill 2078, which addresses school “multihazard emergency plans”, according to the Texas Tribune. The bill will now go back to the Senate.

The language was added by Representative Chris Paddie, R-Marshall, who told CNN, “There is absolutely no intent and I would argue nothing in this language discriminates against anyone,” Paddie said. “In fact, it makes sure there are reasonable accommodations for all children.”

Critics, however, say the bill is discriminatory without question and will incite backlash, much like what occurred when North Carolina passed a similar bill.

“Let’s be honest and clear here: This amendment is the bathroom bill, and the bathroom bill is an attack on transgender people,” said state Rep. Joe Moody, D-El Paso, according to the Texas Tribune. “Some people don’t want to admit that. Maybe that’s because they’re ashamed, but make no mistake about it — this is shameful.”

Seven Year Old Transgender Girl Planned to Testify Against TX Bathroom Bill

A 7-year-old transgender girl was all ready to testify at a Texas House State Affairs Committee Hearing this week. But as the session went on deep into the night, the girl fell asleep before her turn to speak came at 2 a.m.

According to the Texas Tribune, Libby Gonzalez fell asleep in her father’s arms while waiting for her turn to speak, so her parents took to the microphone for her, asking lawmakers to keep their child safe.

Click here for the full story from the Texas Tribune and to hear an audio of Libby’s planned testimony.

Changing Course, the Seventh Circuit Holds that Sexual Orientation Discrimination Can Give Rise to a Title Vii Employment Discrimination Claim

In the Legal Digest’s Transgender Guide published last year, we reported on a case out of the Seventh Circuit Court of Appeals, holding that Title VII does not apply to employment discrimination based on sexual orientation.  The case is Hively v. Ivy Tech Community College of Indiana and it involves claims by a part-time adjunct professor that she was denied full-time employment and promotions because of her sexual orientation.  In dismissing the lawsuit, the Seventh Circuit cited the 1979 Fifth Circuit opinion Blum v. Gulf Oil Corp., 597 F.2d 936 (5th Cir. 1979), which held that a discharge for homosexuality is not prohibited by Title VII.  The Fifth Circuit has jurisdiction over Texas.

The Seventh Circuit, however, recently reheard the Hively appeal en banc, meaning the entire Seventh Circuit panel of judges considered the case.  By a vote of 8 to 3, the appellate court changed course, this time holding that the suit had stated a viable claim for relief under Title VII.  The Seventh Circuit observed that prior case law did not recognize Title VII liability for discrimination based on sexual orientation and that, while Congress has considered adding the words “sexual orientation” to the list of prohibited characteristics, it never did so.  Yet, according to the appeals court, the “goalposts have been moving over the years, as the Supreme Court has shed more light on the scope of the language that already is in the statute:  no sex discrimination.”  Thus, the fact that Congress has not explicitly included sexual orientation as a prohibited characteristic does not preclude such a discrimination claim.  In fact, the Supreme Court has recognized sex discrimination in many forms, including sexual harassment, same-sex sexual harassment, actuarial assumptions about one’s longevity, and discrimination based on a person’s failure to conform to a certain set of gender stereotypes.

Hively claimed that if she had been a man married to a woman (or living with a woman, or dating a woman) and everything else had stayed the same, Ivy Tech would not have refused to promote her and would not have fired her.  According to the Seventh Circuit, these facts state a viable Title VII claim.  The appeals court stated:  “Any discomfort, disapproval, or job decision based on the fact that the complainant – woman or man – dresses differently, speaks differently, or dates or marries a same-sex partner, is a reaction purely and simply based on sex.  That means it falls within Title VII’s prohibition against sex discrimination, if it affects employment in one of the specified ways.”

Hively also claimed that she suffered sex discrimination due to her association with others of the same sexual orientation.  Looking to prior Title VII cases recognizing such associational discrimination claims based on race, the court of appeals observed that “to the extent that the statute prohibits discrimination on the basis of the race of someone with whom the plaintiff associates, it also prohibits discrimination on the basis of the national origin, or the color, or the religion, or (as relevant here) the sex of the associate.  No matter which category is involved, the essence of the claim is that the plaintiff would not be suffering the adverse action had his or her sex, race, color, national origin, or religion been different.”  For these reasons, the Seventh Circuit reversed the dismissal of Hively’s suit and returned the case to the trial court for further proceedings.

The Seventh Circuit does not have jurisdiction over Texas.  As of now, Texas precedent out of the Fifth Circuit Court of Appeals does not recognize Title VII claims based upon sexual orientation.  However, the law in this area is ever evolving.  Guidance from the Equal Employment Opportunity Commission (EEOC) cautions that employers may run afoul of Title VII if they discriminate based on sexual orientation.  Therefore, simply because the Fifth Circuit has not yet changed the law in this area, does not mean that employers will be immune from an EEOC enforcement action or a lawsuit challenging an employment decision made on the basis of sexual orientation.  Employers should consult with legal counsel if these issues arise to avoid costly legal action and unfavorable public attention.

House Committee to take up new transgender bathroom bill this week

In a detour from discussion on the controversial “bathroom bill”, Senate Bill 6, the Texas House will discuss a new bill this week designed to prevent school districts from making local policies regarding gender identification and bathroom usage.

According to the Texas Tribune, House Bill 2899, authored by Rep Ron Simmons, R-Carrollton, would effectively strip power from local municipalities and school districts to make such policies. Instead it advocates for statewide regulation of transgender bathroom policies. If successful, the bill would nullify existing anti-discrimination ordinances already in place in some cities and towns that allow transgender people access to bathrooms based on gender identity.

Simmons was quoted in the Tribune as saying, “We believe those issues should be handled at the state level and if there is an issue that exists in the state that people need to come to the Capitol, they need to convince 76 representatives, 16 senators, and one governor of what the policy needs to be. Until then, it’s my opinion, we don’t need to change.”

Read the full story from the Texas Tribune

Photo by Ted Eytan via Flickr

Another “Bathroom Bill” is on the Table in Texas this Legislative Session

In March, the Texas Senate passed Senate Bill 6 which would require people to use bathrooms in schools, universities, and other governmental buildings that aligned with the gender on their birth certificate.  The bill passed after hours of debate.  Here are the highlights with respect to public schools:

  • The stated purpose of SB 6 is “to provide for the general diffusion of knowledge and an efficient system of public schools, potentially harmful and distracting environments should be barred.”
  • “Bathrooms” and “changing facilities” are defined as a place “where a person may be in a state of undress, including a restroom, locker room, changing room, or shower.”
  • The bill applies to public bathrooms only.
  • The bill states: “A school district or open-enrollment charter school shall require that each multiple-occupancy bathroom or changing facility accessible to students and located in a school or school facility be designated for and used only by persons based on the person’s biological sex.”
  • “Biological sex” is defined as the “physical condition of being male or female, which is stated on a person’s birth certificate.”
  • Accommodations are allowed, “including a single-occupancy bathroom or changing facility or the controlled use of a faculty bathroom or changing facility, on request due to special circumstances.” However, an accommodation is prohibited if it “allows a person to use a multiple-occupancy bathroom or changing facility accessible to students that is designated for the biological sex opposite to the person’s biological sex.”

Sponsored by Republican Senator Lois Kolkorst, the bill will next be considered by the state’s House of Representatives.  Read the text of Senate Bill 6.


Pennsylvania Judge Issues Injunction in Transgender Student Case

Three transgender high school students in suburban Pittsburgh can use bathrooms that match their gender identity as their federal case against their school district proceeds in court, a judge ruled on Monday.

U.S. District Court Judge Mark Hornak ordered the Pine-Richland School District to stop enforcing a rule adopted in September for students to use facilities corresponding to their biological sex or unisex facilities, court documents showed.

The ruling comes five days after President Donald Trump’s administration revoked landmark guidance to public schools allowing transgender students to use bathrooms of their choice, reversing a signature initiative of former Democratic President Barack Obama…

Read the rest of the article by Brendan O’Brien at Reuters