Many schools are grappling with the integration of a relatively new concept—gender identity—as it relates to serving our students. Until recently, schools struggled independently to define this issue and to understand what it means to accommodate, versus discriminate against, transgender students.
For example, in 2014, Atherton High School in Louisville, KY, convened its 12-member school council numerous times in an open forum to review this issue. Meetings included presentations by numerous local agencies, parents, community members, a lawyer from the nonprofit group Alliance Defending Freedom, an attorney who handles transgender cases, and general counsel from the Kentucky Association of School Administrators. This process drew national attention, and the school council ultimately approved a nondiscrimination policy that included gender identity and a policy permitting students to use the school facilities that aligned with their gender identity.
There are few court opinions that directly address this topic in the K–12 context. Due to the ambiguous legal standing on this topic, principals across the nation have likely confronted the same challenges of understanding how to accommodate transgender students’ requests to use restroom and locker room facilities that align with their gender identity. Progressing the national discussion on this issue in May 2016, the U.S. Department of Education issued a “Dear Colleague” letter that gave examples and explicit descriptions of discrimination against a student based on gender identity under Title IX.
Often, school districts wrestle with the need to balance the rights of transgender students with the privacy rights of the rest of the student body, arguing that there are safety concerns involved. Relative to privacy, the vast majority of restrooms have stalls with doors, which negates some of the privacy concerns. With regard to safety, to date there is no evidence that there has been any molestation/incident in a school involving a transgender student. Similar to other safety issues that have occurred in restrooms (e.g., bullying and harassment, fights, drugs, theft, sex), school disciplinary policies authorize administrators to address these issues as they have traditionally done—on a case-by-case basis.
Admittedly, when expanding the discussion to locker rooms, the issue becomes a bit more complex. As many school administrators acknowledge, very few students in schools shower during the school day in communal showers. For sports or physical education, privacy curtains are a voluntary option for all students to use in locker rooms. Despite these considerations, the debate will likely continue. It is timely that ED issued a guidance letter to assist school leaders.
Dear Colleague Letter
The department, through the Office for Civil Rights, enforces Title IX, which prohibits discrimination on the “basis of sex” in any educational program or activity receiving federal financial assistance. However, Title IX expressly permits “separate toilet, locker room, and shower facilities on the basis of sex.” Given such authority to sex-segregate under certain conditions, it is not surprising that school leaders have faced confusion, debate, complaints, and lawsuits over transgender students’ use of school restrooms.
On May 13, 2016, ED, along with the U.S. Department of Justice, issued a joint letter providing guidance on the rights of transgender students by outlining key policy principles underlying the matter of transgender discrimination in schools. Gender identity is to be treated as the word “sex” under Title IX, and schools are required to treat students consistent with their gender identity, not biological gender. This means that students may access the locker room; restroom; and with some conditions, single-sex sports, activities, or classes that comport with their gender identity.
The letter reinforces the confidentiality of information in school records and reminds school personnel that only those with a legitimate educational interest have a need to know a student’s gender assigned at birth. Disclosure of such information, including directory information, could be considered an invasion of privacy. Requests for amending a transgender student’s educational records must be considered; refusal to do so under the Family Educational Rights and Privacy Act is subject to appeal and hearing rights. Changing a student’s name and gender identity will provide privacy protections and aid in staff’s use of proper pronouns and preferred names.
The letter highlights that no medical diagnosis or treatment documentation may be required of transgender students. Even in the face of community “objections or concerns,” schools must ensure that transgender students are not to be treated differently from the way other students with the same gender identity are treated. Public outcry is not an excuse for discrimination: “The desire to accommodate others’ discomfort cannot justify a policy that singles out and disadvantages a particular class of students,” the letter states.
The ED’s guidance letter does not have the force of law, yet it outlines how the department interprets the law and its regulations. The Fourth Circuit Court of Appeals recently made clear that the department’s interpretations are controlling.
Most Recent K–12 Court Opinion
A transgender male student in Virginia said that he began to identify as a boy at a very young age. By his freshman year in high school, many friends and family members knew that he presented himself as a boy. Around this time, a psychologist diagnosed him with gender dysphoria and suggested that he be treated as male in every way. (Gender dysphoria is a condition characterized by the stress created by a conflict between one’s sex at birth and one’s gender identity.) The school board passed a resolution requiring that students use the restroom and locker room facilities that align with their biological gender and that “students with gender identity issues shall be provided an alternative appropriate private facility,” i.e., three unisex, single-stall restrooms for any student to use.
After the school board meeting, the student began hormone treatment and his voice began to sound deeper. He had an overall masculine appearance, which he reported caused discomfort among girls in the school when he used the female restroom. Thus, he believed he should be able to use the male restroom and not the single-stall restroom. When he was denied, he sued the school district.
In reversing the district court’s dismissal of his Title IX claim, the Fourth Circuit held that the department’s interpretation of its own regulations concerning restroom access by transgender individuals is entitled deference and should be controlling. The court found that Title IX’s regulation permitting sex-segregated restrooms was “silent as to how a school should determine whether a transgender individual is a male or female for the purpose of access . . .” For example, the board interpreted the regulation by determining sex as it relates to genitalia (requiring use of the restroom by one’s biological gender), whereas the department interpreted the regulation as determining sex with reference to gender identity (requiring use of the restroom in alignment with one’s gender identity). This decision is the first of its kind and is binding only in North Carolina, South Carolina, Virginia, West Virginia, and Maryland.
What Should Principals Do?
School administrators should begin reviewing the legal precedent that has been established in the courts on this issue as well as the guidelines set forth by the letter. Although it is only guidance, should the department find a transgender student experienced discrimination, the threat of losing federal funds is real for schools nationwide. Navigating public opinion likely will involve a great deal of community education about the principles of nondiscrimination. Ultimately, a student’s transgender status is a family and personal matter, deserving of respect for privacy and equitable treatment.
As one school leader later wrote: “As a high school principal, I learned that communication with each stakeholder was essential to relaying information and maintaining the relationship of trust that had been established with teachers, students, and parents.” After two years of implementing the policy of accommodating transgender students, there have been no issues with supporting the growing number of transgender students in the school. The staff and students recognize the strength that comes from diversity; this issue is an example of how the school supports all students, regardless of the characteristics that distinguish us from one another.
Thomas Aberli, EdD, has been a high school administrator for 15 years and the principal of Atherton High School in Louisville, KY, since 2010. Susan G. Clark, PhD, JD, is a professor and interim dean of the LeBron James Family Foundation College of Education at The University of Akron in Ohio and frequently publishes in the area of school law. Suzanne E. Eckes, PhD, JD, is a professor at Indiana University in Bloomington and has published widely on school legal matters, including co-editing The Principal’s Legal Handbook.