Equality for transgender students (February 2015 School Leader Update)
In a recent court case, a Maine court ordered a school district to pay a student $75,000 for not allowing the student to use the public bathroom of the gender for which that student identified. This case serves as an important reminder to school districts that they have a responsibility to ensure equal treatment for all students.
Title IX protects transgender students from sex discrimination. See Dear Colleague Letter & Title IX and Sexual Violence Q&A. Additionally, Iowa Code section 216.9 clearly delineates that protection from unfair practices and discriminatory acts in education includes gender identity. Such discrimination practices shall include but not be limited to:
- Exclusion of a person or persons from participation in, denial of the benefits of, or subjection to discrimination in any academic, extracurricular, research, occupational training, or other programs or activity except athletic programs;
- Denial of comparable opportunity in intramural and interscholastic athletic programs;
- Discrimination among persons in employment and the conditions of employment;
- On the basis of sex, the application of any rule concerning the actual or potential parental, family or marital status of a person, or the exclusion of any person from any program or activity or employment because of pregnancy or related conditions dependent upon the physician’s diagnosis and certification.
“Educational institution” includes any preschool, elementary or secondary schools, community college, area education agency, or postsecondary college or university and their governing boards.
“Gender identity” means a gender-related identity of a person, regardless of a person’s assigned sex at birth.
Note: Educational institutions are not prohibited from maintaining separate toilet facilities, locker rooms, or living facilities for the different sexes so long as comparable facilities are provided. Nor are bona fide religious institutions prohibited from imposing qualifications based on religion, sexual orientation or gender identity when such qualifications are related to a bona fide religious purpose or any institution from admitting students of only one sex.
Here are some key points to remember:
- Case-by-case determination: Communication with the student’s parent is key. Schools should make a case-by-case determination about appropriate arrangements for transgender students regarding dress code, restroom and locker facilities, overnight accommodations on school trips, and participation in activities. These arrangements should be based on the student or parents’ wishes, be minimally burdensome, and appropriate under the circumstances.
- Confidentiality: A student has a right to keep his or her status as a transgendered student private at school. The district should keep this information confidential and staff should not disclose this unless legally required to. Even if the student has disclosed his or her status to other staff or students, it is not the school’s information to share. Medical information of the student should also be kept confidential.
- Communications and publications: pronouns and name changes: The preference for the use of masculine, feminine or gender-neutral pronouns should be the choice of the student. A legal name change is not required for a student to use the preferred name for class lists, student activities, yearbook publications, etc. However, a student’s legal name must be indicated in the student’s official records. The district may list the student’s preferred name in the official records by listing it next to the student’s legal name with asterisks next to it until a legal name change is made.
- Dress: Allow the student to dress in accordance with the student’s identified gender for school or other extracurricular activities including prom, graduation, yearbook, or other activities.
- Restroom and locker facilities: All students should have access to locker room, bathroom, and shower facilities that are safe, comfortable, and convenient. Absent a concern for safety, schools should permit a student to use the restrooms or locker rooms for which they identify with. If private or separate facilities are requested by any transgendered or non-transgendered student, the student should be provided with those facilities. Remember, a student cannot be forced to use a restroom for which they do not identify.
- Overnight accommodations: Transgendered students should be assigned to rooms based on their gender identity, accommodating additional privacy needs as requested.
- Sports: A student must be permitted to participate in interscholastic activities for the gender with which that student identifies (assuming the student is eligible otherwise). The Iowa High School Athletic Association (IHSAA) has a Statement protecting these students.
- School policies and procedures: Make sure your anti-discrimination policies include gender identity discrimination. Make sure you train your staff about gender identity issues in your anti-discrimination, bullying and harassment trainings.