You have a transgender student in your school.  What bathroom do they use?  There is a lot of legal talk about this, but no clear, across the board answer. Keep in mind that part of the problem is that the term “transgender” is being used to describe a wide array of students, ranging from those who believe that their gender identity does not match their biology, to those who have had surgery.

The Department of Education’s Office of Civil Rights recently said that a transgender student is “a student who consistently and uniformly asserts a gender identity different from the student’s assigned sex [at birth], or for which there is documented legal or medical evidence that the gender identity is sincerely held as part of the student’s core identity.”  Districts should keep in mind that OCR has stated that transgender students are protected from discrimination under Title IX and that protection might sometimes mean that schools will need to consider permitting such students to use the bathroom that matches the gender with which the student identifies rather than the student’s biological sex.

So this is an area where the wisest thing we can say is to talk to the parents, get more information, and call your lawyer.

You are likely to face criticism whatever you decide. In fact, you might face litigation whatever you decide.  At least two courts have said that a school discriminated by not allowing a transgender student to use the bathroom that matched their gender identity.  OCR said the same in a California investigation.  But now there is at least one suit we have learned about that claims that a school is violating the law by allowing a student born male to use the girls’ restroom.  This was reported by the Louisville Courier Journal in a story about Atherton High School in Jefferson County. The suit was filed by a group called the Alliance Defending Freedom.  This group recently sent an email to school superintendents across the country confidently proclaiming that there is no legal duty to allow a transgender student to use a bathroom other than the one that matches their biological sex.  On top of that, the group enclosed a policy to that effect, and offered to defend any legal challenge you get at no cost.  That may sound like an attractive offer, but remember, this is a group that is advocating for their view on this matter. We think your legal advice should come from a lawyer who is not advocating any particular point of view, but only interested in serving you as a client.

This is a classic example of a situation where dispassionate, objective legal advice is needed.  Maybe 10 years from now the law on this subject will be crystal clear, but that is not the case right now.  Get information. Talk to the parents and student.  Assess all your options. Call your lawyer.

DAWG BONE: TRANSGENDER STUDENTS AND THE BATHROOM: NO EASY ANSWERS