The National School Boards Association has published a guide to serving transgender students in public schools. We think you will find it helpful. You can go to the NSBA website and find this as a free download: TRANSGENDER STUDENTS IN SCHOOLS. The Guide is written as a series of FAQs addressing the most common issues that arise in the operation of your school. Here is the link.
The law on this subject is evolving. Of course “evolving” means that things are not exactly clear. We know that students should never be bullied or harassed based on any characteristic, including the student’s sex, sexual orientation or gender identity. We also know that Title IX regulations specifically permit separation of the sexes with regard to the use of the bathroom, locker rooms and sleeping arrangements, so long as the facilities are comparable. So is it “discrimination” to tell a transgender male (born female) that he cannot use the boys’ bathroom? According to the first case to reach the Circuit Court level, it is. The decision, G.G. v. Gloucester County School Board, was decided by 2-1 vote of a panel of the 4th Circuit. This is not a binding precedent for Texas schools which are in the 5th Circuit. However, being the first decision of a federal appellate court, this is an important decision that will be a factor in all future cases.
The 4th Circuit’s decision is based on the concept of judicial deference to the administrative agency that is responsible for interpreting and enforcing a federal law. The court’s two-person majority found the Title IX regulations ambiguous with regard to transgender students and bathroom use. In light of that ambiguity, the court held that it must defer to the interpretation of the Department of Education (DOE), as long as that interpretation was reasonable. The DOE’s interpretation is that schools must “generally treat transgender students consistent with their gender identity.” This would mean that the transgender male must be allowed to use the boys’ bathroom. The 4th Circuit majority held that DOE’s interpretation was reasonable, and thus the policy of the Virginia school district that barred the student from the boys’ bathroom was a violation of Title IX. The dissenting judge found no ambiguity in the regulations, and thus no reason to defer to DOE’s interpretation. He would have upheld the school’s policy. The case is G.G. v. Gloucester County School Board, 2016 WL 1567467, decided by the 4th Circuit on April 19, 2016.
Litigation over this issue is going to continue for the foreseeable future. Thus we recommend that you download and study the NSBA Guide. Remember, also, that every issue that arises in your district concerning transgender students or employees should be reviewed individually. The Guide published by NSBA is a good starting point for a general outline of the issues and how the DOE and the courts have addressed them so far. But there is no substitute for legal advice from your school’s attorney on whatever specific issues and cases arise.
DAWG BONE: THE CULTURE WARS ALWAYS FIND THEIR WAY INTO THE PUBLIC SCHOOL.
TOMORROW IS TOOLBOX TUESDAY! WE WILL REVIEW A CASE INVOLVING A STUDENT WHOSE VIOLENT OUTBURSTS CAUSED THE SCHOOL DISTRICT TO SEEK AN INTERIM REMOVAL.