Tuesday, December 22, 2020

Transgender Student Rights

From Kirsch-Goodwin & Kirsch, PLLC

Transgender is an umbrella term for persons whose gender identity or expression (masculine, feminine, other) is different from their sex (male, female) at birth.  Gender identity refers to one’s internal understanding of one’s own gender, or the gender with which a person identifies. Gender expression is a term used to describe people’s outward presentation of their gender.  Gender identity and sexual orientation are different facets of identity. Everyone has a gender identity and a sexual orientation, but a person’s gender does not determine a person’s sexual orientation.  Transgender people may identify as heterosexual, homosexual, bisexual, or none of the above.  (Centers for Disease Control, Lesbian, Gay, Bisexual, and Transgender Health, https://www.cdc.gov/lgbthealth/transgender.htm.)

The acronym LGBTQ stands for “lesbian, gay, bisexual, transgender, queer, or questioning,” and is an expansion of the abbreviation “LGB” which in turn replaced the term “gay” back in the last century.

There is more in the news lately about transgender student rights, but the United Stated Department of Education’s Office of Civil Rights (“OCR”) addressed it back in 2010 in a “Dear Colleague” letter about bullying.  There, OCR informed schools that “Although Title IX does not prohibit discrimination based solely on sexual 

orientation, Title IX does protect all students, including lesbian, gay, bisexual, and trans-gender (LGBT) students, from sex discrimination.”  (Dear Colleague Letter: Harassment and Bullying, October 26, 2010.)  As OCR explained, in such cases, schools have “an obligation to take immediate and effective action to eliminate the hostile environment.”

            The CDC provides guidance on what schools can do.  This includes implementing evidence-based policies, procedures, and activities designed to promote a healthy environment for all students, encourage the creation of LGBTQ student-led and student-organized school clubs (such as gay-straight alliances or gender and sexuality alliances open to student of all sexual orientations and genders), encourage respect for all students and prohibit bullying, harassment, and violence against all students, identify “safe spaces” such as counselors’ offices or designated classrooms where LGBTQ student can receive support from administrators, teachers, or other school staff, ensure that health curricula or educational materials include HIV, other STD, and pregnancy prevention information that is relevant to LGBTQ students (such as ensuring that curricula or materials use language and terminology, provide trainings to school staff on how to create safe and supportive school environments for all students, regardless of sexual orientation or gender identity, and encourage staff to attend these trainings, facilitate access to community-based providers who have experience providing health services, including HIV/STD testing and counseling, social, and psychological services to LGBTQ students.

            Recent case (August 2020):  The 4th Circuit U.S. Court of Appeals, which encompasses Virginia, West Virginia, Delaware, Maryland, North Carolina and South Carolina, struck down a Virginia school board’s bathroom policy segregating students with gender identity issues.    The policy limited bathroom use to "corresponding biological genders" and required students with "gender identity issues" to use alternative facilities.  The 4th Circuit found that the policy violated a transgender male student's constitutional rights and rights under Title IX.  (Title IX provides that no person “shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any educational program or activity receiving Federal financial assistance....” 20 U.S.C. § 1681[a] ; see also 34 C.F.R. § 106.31[a].) The student was initially allowed to use the boy's bathroom, but the community complained and the board amended its policy to state that the use of bathrooms "shall be limited to the corresponding biological genders, and students with gender identity issues shall be provided an alternative appropriate private facility."  The student sued saying that the board's policy singled him out and discriminated against him for being transgender in violation of both his 14th Amendment rights and Title IX.  The District Court agreed and granted him summary judgment.  The 4th Circuit affirmed.  Grimm v. Gloucester County Sch. Bd., (4th Cir. 8/26/20).

            The Ninth Circuit and other courts around the country have similarly ruled, striking down bathroom policies that exclude transgender students.  See, Parents for Privacy v. Barr, 949 F.3d 1210 (9th Cir. 2020), Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034 (7th Cir. 2017), A.H. v. Minersville Area Sch. Dist., 290 F. Supp. 3d 321 (M.D. Pa. 2017).

            This link will take you to resources available on the internet:  https://www.cdc.gov/lgbthealth/youth-resources.htm#school

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