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.
The Trump administration is rescinding protections for transgender students in public schools.
The move by the Justice and Education departments reverses guidance the Obama administration publicized in May 2016, which said a federal law known as Title IX protects the right of transgender students to use restrooms and locker rooms that match their gender identities.
But on Wednesday, the two federal departments said the Obama documents do not “contain extensive legal analysis or explain how the position is consistent with the express language of Title IX, nor did they undergo any formal public process. This interpretation has given rise to significant litigation regarding school restrooms and locker rooms.”
Photo by Ted Eytan via Flickr
Injunction Banning Transgender Students from Using Bathrooms Based on Gender Identity Will Likely Remain in Place
The New York Times reports that the Drumpf administration will not pursue action against the injunction that kept in place a ban on transgenders’ use of bathrooms that correspond with their gender identity. The injunction was issued last August, after suit was brought under Title IX of the Education Amendments of 1972. The Obama administration filed an appeal to challenge the injunction. However, now it appears that the injunction will remain in place since the new administration announced that it will no longer pursue the appeal.
Photo by Ted Eytan via Flickr
On January 5, 2016, Senator Dan Patrick, unveiled a bill relating to regulations and policies for entering or using a bathroom or changing facility. The bill authorizes civil penalties for violations of the law and increases criminal penalties for criminal acts occurring on the premises of a bathroom or changing facility. Here are the highlights:
- The bill defines a “bathroom or changing facility” as a facility where a person may be in a state of undress, including a restroom, locker room, changing room, or shower room.
- The bill would prohibit a political subdivision from adopting or enforcing an order, ordinance, or other measure that relates to the designation or use of a private entity’s bathroom or changing facility or that requires or prohibits the entity from adopting a policy on the designation or use of the entity’s bathroom or changing facility.
- In awarding a contract for the purchase of goods or services, a political subdivision may not consider whether a private entity competing for the contract has adopted a policy relating to the designation or use of the entity’s bathroom or changing facility.
- School districts and open-enrollment charter schools will have to adopt a policy requiring each multiple-occupancy bathroom or changing facility accessible to students that is located in a school or school facility to be designated for and used only by persons based on the person’s biological sex. The bill defines “biological sex” as “the physical condition of being male or female, which is stated on a person’s birth certificate.”
- The bill does not prohibit a school district or open-enrollment charter school from providing an accommodation, 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, the school district or open-enrollment charter school may not provide an accommodation that 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. Exceptions apply to persons entering facilities for custodial, maintenance, or medical purposes, or to assist those with special needs, as long as the person assisting is authorized to do so.
- A private entity that leases or contracts to use a building owned or leased by the state or a political subdivision is not subject to a policy developed under the law, and it may not require or prohibit a private entity that leases or contracts to use a building owned or leased by the state or a political subdivision from adopting a policy on the designation or use of bathroom or changing facilities located in the building. Exceptions apply to persons entering facilities for custodial, maintenance, or medical purposes or to assist those with special needs. It also does not apply to children under the age of eight.
The United States Supreme Court has decided to take up the high-profile Virginia transgender student case, G.G. v. Gloucester Cnty. Sch. Bd., No 15-2056, in which a transgender male sued to allow access to the boys’ restroom in accordance with his gender identity. The School Board of Gloucester County, Virginia barred the 17-year-old from using the boys’ restroom and instead required students to use restrooms consistent with their biological gender or, alternatively, a private single bathroom accommodation. This suit involves a challenge to the U.S. Department of Education guidance on Title IX and its regulations stating that a funding recipient providing sex-separated facilities must “generally treat transgender students consistent with their gender identity.”
The Fourth Circuit Court of Appeals initially ruled that the trial court had to give deference to the Department of Education’s guidance. The trial court then ordered the school system to allow the student to use the boys’ restroom. An injunction was issued barring the school board from enforcing its bathroom policy. The school board appealed and asked for a stay of the injunction, but the stay was denied.
Then, on July 14, 2016, the board took their request to the United States Supreme Court, asking the Court to block the injunction pending appeal. The Supreme Court sided with the board and blocked the injunction and allowed the board to prevent use of the boys’ bathroom while it decided whether to take up the case.
The Supreme Court, indeed, will take up the case. The Court will consider whether deference should extend to the Department of Education’s guidance and whether the Department of Education’s interpretation of Title IX should be given effect, so that a funding recipient providing sex-separated facilities must “generally treat transgender students consistent with their gender identity.”
Facts: Jane Doe, an eleven-year-old transgender girl, sought to use the girls’ restroom at Highland Elementary School in Ohio. The school would not permit her to do so. After an investigation, the Department of Education Office of Civil Rights (OCR) found that the district’s policy discriminated against the student on the basis of her sex in violation of Title IX of the Education Amendments of 1972. The district filed suit seeking an order enjoining the Department of Education and the Department of Justice from enforcing Title IX against the district. The student, in turn, sought an order enjoining the district’s transgender bathroom policy and allowing her to use the bathroom based upon her gender identity.
Ruling: The Ohio federal district court ruled in favor of the student, entering an order that required the district to allow her to use the girls’ bathroom. To prevail on a claim under Title IX, plaintiffs had to show that (1) the student was excluded from participation in an educational program because of her sex, (2) the educational institution received federal financial assistance, and (3) the discrimination harmed the student. The trial court rejected the school district’s contention that discrimination based upon “sex” under Title IX, implied only one’s “biological sex” and not gender identity. The student claimed that she was stigmatized and isolated, forced to use a separate bathroom, not treated like a girl, and experienced emotional difficulties. The court concluded that she was likely to succeed on a Title IX claim and, therefore, was entitled to a preliminary injunction under Title IX.
The trial court also determined that plaintiffs were likely to prevail on an Equal Protection claim. The trial court applied the highest level of scrutiny to plaintiffs’ claims, which required the district to show that its policy was necessary to achieve a compelling governmental interest, and that the policy was the least restrictive means of achieving that interest. The school district advanced concerns regarding the dignity and privacy of other students, and raised safety and lewdness issues. The district also argued that allowing a transgender student to use of bathrooms based on gender identity would interfere with the other students’ zone of privacy. The trial court rejected each of those arguments and found that there was insufficient evidence to support the district’s contentions. Thus, the trial court granted the student’s request for a preliminary injunction and allowed her to use district bathrooms based upon her gender identity. This case is on appeal.
State of Texas v. United States of America, Dkt. No. 7:16-cv-00054-O (N.D. Tex. August 21, 2016).
Facts: Eleven states, including Texas, filed suit against several federal government agencies, including the Department of Education and Department of Justice seeking to block enforcement of federal guidelines regarding transgender students. The suit challenged the assertions that federal anti-discrimination laws require that all persons must be afforded the opportunity to have access to restrooms, locker rooms, showers, and other intimate facilities which match their gender identity rather than their biological sex. The lawsuit claimed that the federal government overstepped its authority in interpreting federal discrimination laws in this way. The suit requested that the court block the federal government from implementing, applying, or enforcing the new guidance interpretation.
Ruling: In August of 2016, the Texas federal court assigned to the case granted the states’ request and issued a temporary injunction preventing the federal government from enforcing the guidelines in pending investigations and litigation. According to the court, the guidance (1) was issued without complying with notice and comment requirements of the Administrative Procedures Act and (2) contradicted existing legislative and regulatory texts. At this point, therefore, schools are not obligated to follow federal guidelines, but they may choose to do so. This case will likely proceed on appeal and there are other cases being litigated by transgender students. Thus, districts will have to keep a close eye on continuing legal developments in this area.
Over the past year, there have been a number of significant developments concerning a school district’s obligations toward transgender students. Even still, a lot remains unsettled. On May 13, 2016, the Department of Education released a Dear Colleague Letter, offering guidance on civil rights protections for transgender students. Title IX of the Education Amendments of 1972 and its implementing regulations prohibit sex discrimination in educational programs and activities operated by recipients of federal financial assistance. According to the Dear Colleague Letter, Title IX protection encompasses discrimination based on a student’s gender identity, including discrimination based on a student’s transgender status. Here are the highlights:
- A student’s gender identity should be treated as the student’s sex for purposes of Title IX and its implementing regulations. Thus, a school must not treat a transgender student differently from the way it treats other students of the same gender identity.
- When a school is notified that a student will assert a gender identity that differs from school records, the school should begin treating the student consistent with the student’s gender identity. Requiring specific identification documentation may violate Title IX.
- Schools ultimately have a responsibility to provide a safe and nondiscriminatory environment for all students, including transgender students. If sex-based harassment creates a hostile environment, the school must take prompt and effective steps to end the harassment, prevent its recurrence, and, as appropriate, remedy its effects.
- A school must treat students consistent with their gender identity even if their records indicate a different sex. This includes using pronouns and names consistent with their gender identity.
- When schools provide sex-segregated activities and facilities, transgender students must be allowed to participate consistent with their gender identity. This includes locker rooms and restrooms, sex-segregated classes, housing and overnight accommodations, and with respect to other sex-specific activities and rules.
- Districts must take reasonable steps to protect a students’ privacy related to their transgender status, including their birth name and sex assigned at birth, or run the risk of violating the student’s privacy rights or the Family Educational Rights and Privacy Act, which protects against the disclosure of personally identifiable information. School personnel must have a “legitimate educational interest” in the information to permit disclosure.
- Schools must consider the request of an eligible student or parent to amend information in the student’s education records that is inaccurate, misleading, or in violation of a student’s privacy rights. If no amendment is allowed, the school must inform the requestor of its decision and of the right to a hearing. If the school does not allow the amendment after a hearing, the requestor is allowed to insert a statement in the record. Schools must respond to a request to amend information related to a student’s transgender status consistent with its general practices for amending other students’ records.
Despite the federal guidance, Texas law and school policy is unsettled. The Dear Colleague Letter has sparked a lawsuit by eleven states, including Texas, which seeks to block enforcement of the guidelines. In addition, effective August 1, 2016, new rules by the University Interscholastic League require the league to use a birth certificate in determining questions about a student-athlete’s gender. Although this rule has been approved by UIL, that does not mean it can’t be subject to a legal challenge. Also, on June 28, 2016, Texas Attorney General Ken Paxton issued an opinion stating that Forth Worth ISD’s transgender policy violated Chapter 26 of the Education Code to the extent that it encourages a child to withhold information from his or her parents.
On the other hand, some courts are applying the Department of Education guidance in legal challenges. For example, there has been quite a bit of activity in the Virginia case, G.G. v. Gloucester Cnty. Sch. Bd., No 15-2056. This case involves a transgender male, who sued to allow access to the boy’s restroom in accordance with his gender identity. The Fourth Circuit Court of Appeals previously ruled that the trial court had to give deference to the Department of Education’s guidance. The trial court then ordered the school system to allow the student to use the boys’ restroom. An injunction was issued barring the school board from enforcing its policy that required students to use restrooms based on their biological gender or a private single bathroom accommodation. The school board appealed and asked for a stay of the injunction, but the trial court and appeals court denied the stay. Then, on July 14, 2016, the board took their request to the United States Supreme Court, asking the Court to block the injunction pending appeal. This only highlights the unsettled nature of this emerging area. The best course of action is to contact legal counsel if an issue arises on your campus.