Transgender Faculty Members and Students in our Schools : The Legal and Personal Landscape

1. Transgender Faculty Members and Students in our Schools:The Legal and Personal Landscape Dusty Rader English Teacher, Avon Connecticut Robert Rader, Esq. Executive Director, Connecticut Association of Boards of Education Jay Worona, Esq. Deputy Executive Director and General Counsel New York State School Boards Association For the 48th Annual NAEN Conference Sheraton Sand Key, Clearwater, Florida

2. Definitions • Transgender is an adjective that describes a person who consistently and uniformly asserts a gender different from the gender assigned at birth • This involves more than a casual declaration, but it does not necessarily require a medical diagnosis • This does not refer to the person’s sexual orientation

3. Definitions cont. • Gender identity: One’s self-conception as being male or female, as distinguished from actual biological sex or sex assigned at birth. Most people have a gender identity that matches the gender assigned at birth. • Gender expression: The manner in which a person represents or expresses gender to others, often through behavior, clothing, hairstyles, activities, voice or mannerisms.

4. Definitions cont. • Transsexual is an older term (for transgender), is preferred by some who have permanently changed their bodies. • Intersex is a general term used for a variety of conditions in which a person is born with a reproductive or sexual anatomy that doesn’t seem to fit the typical definitions of female or male. • Cisgender An adjective describing a person whose gender identity corresponds to their assigned sex at birth. Sometimes, cisgender is shortened to “cis-.”

5. Definitions cont. • Gender non-conforming is a term for a person who differs from stereotypical expectations of male and female • Is it a disability? Is it covered by the DSM V? (Diagnostic and Statistical Manual of Mental Disorders)

6. Transgender Persons in the 21st Century Suicide attempts are alarmingly common among transgender individuals-- 41% try to kill themselves at some point in their lives, compared with 4.6% of the general public. The numbers come from a study by the American Foundation for Suicide Prevention and the Williams Institute, which analyzed results from the National Transgender Discrimination Survey.

7. Transgender Students in the 21st Century The In 2011, a study by UCLA found that 78% of transgender employees nationwide reported harassment or mistreatment at work because of their gender identity. EEOC Sues Deluxe Financial for Sex Discrimination Against Transgender Employee, Equal Employment Opportunity Commission (June 5, 2015), available at http://www.eeoc.gov/eeoc/newsroom/release/6-5-15.cfm.

8. Transgender Students in the 21st Century The 2015 National School Climate Survey by the Gay, Lesbian & Straight Education Network(GLSEN) found the following: • Schools nationwide are hostile places. The vast majority of LGBT students hear anti-LGBT language, and experience discrimination and harassment. 57.6% of LGBTQ students felt unsafe at school because of their sexual orientation and 43.3% because of their gender expression.

9. Transgender Students in the 21st Century • 85.2% of students reported that they were verbally harassed • 27% reported being physically harassed • 60% reported that they were prohibited from using the bathroom of the gender to which they identified.

10. Transgender Students in the 21st Century • The report sets forth that discrimination and harassment have dire consequences on student educational outcomes and well-being and; • Transgender students are 3 times more likely to miss school and have lower GPA’s (2.7 versus 3.3) • Transgender students have lower self-esteem and higher rates of depression.

11. Transgender Students in the 21st Century The report indicates that transgender students suffer high rates of bullying and both physical as well as sexual violence fueling a cycle of depression, suicide, drug use and absenteeism. LGBT students are 3 times more likely to be forced to have sex and; 2 times more likely to be bullied, experience dating violence and; 4 times more likely to attempt suicide

12. Transgender Students in the 21st Century • The Report indicates that Bullying, harassment result in cycles of discipline, drop-outs, and criminal justice system involvement of LGBT youth. • LGBT students are more likely to experience every form of discipline more frequently than non-LGBT peers (62.8% of LGBT students versus 45.8% of non-LGBT students).

13. Transgender Students in the 21st Century • Students in schools with comprehensive policies were more likely than students in schools with a generic policy or no policy to report that staff intervened when hearing negative remarks about gender expression (19% vs. 10.5% vs 8.4%); • This is crisis of educational systems and is a public health crisis. • This is a school discipline problem and affects a significant population of students

14. “My school won’t let transgender students use the restroom they identify with. When I first began my transition, a faculty member told me that there would be punishment if I used the men’s restroom again.” -Drew, Jacksonville, FL

15. “My school is a public single-sex school (an “all-girls” school) and it doesn’t have any policy in place for transgender students to attend. There is no protocol for students who transition from female to male while enrolled, and there is no protocol for trans women to attend at all.” -Ezra, Austin, TX

16. Bullying policies protecting LGBT students State

17. Nondiscrimination Policies Protecting Students

18. Status of the Law Regarding Students Who are Transgender • Transgender persons under federal law: • Not an “enumerated class” currently • Some interpret Title IX requirements which prohibit discrimination based on sex as inclusive of transgender persons • The DOE Office of Civil Rights under the Obama administration, in investigating complaints, had taken the position that Title IX offers protection against discrimination and harassment based on gender stereotypes. As of now, this position has not been altered.

19. Department of Education’s Office for Civil Rights (OCR) issues “Dear Colleague Letter” on bullying in October 2010!

20. And, more problems with OCR’s DCL… • Redefines Title IX requirements from responding to peer harassment in a reasonable manner to eliminating harassment and a hostile environment. • Implies school districts that respond to harassment by changing the victim’s schedule or transportation means are punishing the student under Title IX. • Requiring school districts to “publicly label” incidents as harassment could violate FERPA if labeling results in identification of students.

21. Courts Beginning to Adopt OCR DCL New Liability Standard In T.K. v. NYC Dep’t of Education, the U.S. Court of Appeals for the Second Circuit held that a student stated a valid claim for denial of FAPE under IDEA based on peer bullying and harassment. • The Court relied specifically on OCR DCL… “[r]eliance on the expert guidance provided to school districts by the Federal Department of Education (ED) is appropriate.”

22. Courts Beginning to Adopt OCR DCL New Liability Standard • In T.K, the student became the target of bullying by classmates. The bullying allegedly affected her academic and non-academic development. • Family’s attempts to raise the issue of bullying with the school were consistently rebuffed. • School refused to discuss the bullying issue during the development of the IEP. Student parentally placed in a private school.

23. Issue: Whether the district denied the student a FAPE by refusing to discuss bullying with the parents during the IEP development process? • Answer: Yes, district denied a FAPE by refusing to discuss an issue that may substantially interfere with a child’s learning opportunities.

24. Requirements resulting from T.K.: • Where there is a legitimate concern that bullying will severely restrict a disabled student’s educational opportunities – must consider evidence of bullying in developing an IEP. • Where there is a substantial probability that bullying will severely restrict a disabled student's educational opportunities - an anti-bullying program is required to be included in the IEP. • If the school addresses bullying in an IEP, it may not do so in abstract terms.

25. Common Issues That Arise With Students Who are Transgender Names and Pronouns • School Personnel should use the student’s preferred name and pronouns. Student Records • When a transgender student is new to a school, and is using a chosen name, the birth name should be kept confidential by school district staff. In circumstances where personally identifiable information from a student's education record must be disclosed from one school official to another, any prior education records that contain the student's birth name should be accessed only by those school officials with a legitimate educational interest in obtaining those education records. However, it is important to note that, unless a court approved name-change has been performed, there is currently no law that mandates the alteration of school records.

26. Common Issues That Arise With Students Who are Transgender Student Records (Continued) • Pursuant to Title IX, a school must respond to a request to amend information related to a student's transgender status consistent with its general practices for amending other students' records. If a student or parent complains about the school's handling of a request, the school must promptly and equitably resolve the complaint in accordance with the school's Title IX grievance procedures. In the case of a transgender student, a school nurse must have information regarding the student's gender in order to ensure that the student receives appropriate care. Nurses should be reminded that they are legally required to keep their patients' health records confidential, and they should use the student's chosen name when interacting with the student. If the school receives documentation showing the student's name and/or gender has been legally changed by a court or through amendment of a State or federally-issued identification, the school should change the student's official record to reflect the change. In cases where a legal name change has not been implemented, and school staff members are required by law to use or report a student's legal name or gender (e.g., standardized testing), the student's current legal name should be used for those required purposes only and practices should be adopted to avoid the inadvertent disclosure of this confidential information.

27. Common Issues That Arise With Students Who are Transgender Bathroms School districts should allow students to use the restroom that is consistent with their chosen gender identity. Any student - transgender or not - who has a need or desire for more privacy should be given access to an alternative restroom(e.g., staff restroom or nurse's office restroom) This allows a transgender student, or a non-transgender student who may be uncomfortable sharing the facility with a transgender student, the option to use a separate facility and have his/her concerns addressed without stigmatizing any individual student.

28. Common Issues That Arise With Students Who are Transgender Bathroms (Continued) Alternative accommodations, such as a single “unisex" bathroom or private changing space, should be made available to students who request them, but should never be forced upon students, nor presented as the only option.

29. Common Issues That Arise With Students Who are Transgender Locker Rooms Districts should aim to maximize a transgender student's social integration and equal opportunity to participate in gym class and sports; ensure the student's safety and comfort; and minimize the stigmatization of the student. Transgender students should have access to the locker room that is consistent with their gender identity. Alternative arrangements may consist of separate changing areas (room or stall with a door) or a separate changing schedule. However, alternative arrangements should never be forced .upon a student or presented as the only option.

30. Common Issues That Arise With Students Who are Transgender Locker Rooms Any alternative arrangement should be offered in a way that protects the student's ability to keep his/her transgender status private. No student should be required to use a locker room that conflicts with his/her gender identity.

31. Common Issues That Arise With Students Who are Transgender Other Areas In general, where students are separated by gender in school activities (e.g., overnight field trips) transgender students should be permitted to participate in accordance with their gender identity. With regard to dress codes, transgender or gender non-conforming students should not be prohibited from wearing clothes or accessories that other students would be allowed to wear. (See Doe v. Yunits, 2000 WL 33162199, Superior Court of Massachusetts (October 1 1, 2000) (school's claim that transgender student's appearance was disruptive and distracting was not a valid basis to prohibit the student from wearing clothes that were consistent with her gender identity).

32. Common Issues That Arise With Students Who are Transgender Other Areas Districts should review gender-based policies, rules, and practices that may exclude students. For example, where schools have blue graduation gowns for boys and white graduation gowns for girls, schools should consider switching to one color for all graduates since this practice does not have a clear pedagogical purpose.

33. Cases Regarding Transgender Students G.G. v. Gloucester County Sch. Bd. No. 15-2056, 2016WL 1567467 (4th Cir. April 19, 2016). In this case, Gavin Grimm, a transgender male in a Virginia school district, sought the right to use the school’s communal restroom and not “alternative” faculties reserved for transgender students. The student had used the boys' bathroom without issue for several weeks until the school board voted to restrict the girls' and boys' bathrooms to students of the corresponding biological genders. Siding with Grimm, the Department of Justice explained that "[a]llowing transgender students to use the restrooms consistent with their gender identity will help prevent stigma that results in bullying and harassment and will ensure that the district fosters a safe and supportive learning environment for all students, a result that is unquestionably in the public interest.

34. Cases Regarding Transgender Students On appeal to the United States Court of Appeals for the 4th Circuit, the court ruled in favor of Gavin Grimm, relying heavily on a 2015 opinion letter from the Department of Education’s Office of Civil Rights which had concluded that, if schools opt to separate students in restrooms and locker rooms on the basis of their sex, “a school generally must treat transgender students consistent with their gender identity.” The Court issued an injunction ordering the district to immediately permit the student to utilize the bathroom of the gender to which he identified.

35. Cases Regarding Transgender Students The case was then appealed to the US Supreme Court with the following issues presented to the court: (1) Whether courts should extend deference to an unpublished agency letter that, among other things, does not carry the force of law and was adopted in the context of the very dispute in which deference is sought; and (2) whether, with or without deference to the agency, the Department of Education's specific interpretation of Title IX and 34 C.F.R. § 106.33, which provides that a funding recipient providing sex-separated facilities must “generally treat transgender students consistent with their gender identity,” should be given effect. In deciding to hear the case, the US Supreme Court put the injunction on hold.

36. Cases Regarding Transgender Students On February 22, 2017, the U.S. Departments of Justice and Education issued a Dear Colleague letter, rescinding the May 2015 Dear Colleague letter of the Obama administration setting forth that the guidance documents of the Obama Administration which required access to sex-segregated facilities based on gender identity, did not, “contain extensive legal analysis or explain how the position is consistent with the express language of Title IX, nor did the administration undergo any formal public process.” Accordingly, the May 2016 Dear Colleague letter was rescinded “in order to further and more completely consider the legal issues involved.”

37. Cases Regarding Transgender Students On March 6, 2017, In light of the rescinding of the May 2015 Dear Colleague letter, the US Supreme Court, vacated the judgment of the Fourth Circuit and remanded the case to the United States Court of Appeals for the 4th Circuit for “further consideration in light of the guidance document issued by the Department of Education and Department of Justice on February 22, 2017. In vacating the judgment of the 4th Circuit, there is no ruling on which the district court would base an injunction so the school need not provide the student with access to the boys bathroom. The Supreme Court may eventually hear the case but it will not do so this term.

38. Cases Regarding Transgender Students Both parties to this action had requested that the Supreme Court hear the case anyway since the question of whether Title IX should be interpreted to qualify denying a transgender student access to a bathroom consistent with the gender to which he/she identifies still remains. However, the Supreme Court generally prefers not to weigh in on questions that lower courts have not fully vetted and thus refused to continue hearing the case.

39. Cases Regarding Transgender Students Doe v. Regional Sch. Unit 26, 86 A.3d 600, Supreme Judicial Court of Maine (January 30, 2014). A transgender student named Susan, had originally been permitted to use the restroom of the gender to which she identified unless other girls or their parents objected. As a result of media attention that surrounded a male student following Susan into the girls' bathroom one day and alleging that he, too, should be allowed to use the girls' bathroom, the Superintendent terminated Susan's access to the girls' restroom and forced Susan to use a staff bathroom. This prompted Susan's parents to file a complaint with their State’s Human Rights Commission. Maine’s highest court held that the district discriminated against Susan based on her sexual orientation.

40. Cases Regarding Transgender Students Downev Unified Sch. Dist. Resolution Agreement, OCR Case No. 09-12-1095 (October 8, 2014). In order to resolve a complaint filed with OCR, the district agreed to allow a transgender student access to sex-designated facilities for female students and to treat her the same as other female students in all respects, including overnight events, try-outs and participation in extracurricular activities on and off campus, consistent with her gender identity.

41. Cases Regarding Transgender Students Arcadia Unified School District- OCR Case No. 09-12-1020, DOJ Case No. 169-I2C-70 (July 24,2013). A school district, accused of discriminating against a transgender student by denying him equal access to educational programs and activities, entered into a settlement agreement with the OCR in which the district agreed to provide the student with access to sex-specific facilities designated for male students at school consistent with his gender identity, to treat the student the same as other male students in all respects in the education programs and activities offered by the district including overnight events and extracurricular activities on and off campus, and to ensure that any school records containing the student's birth name were treated as confidential. In addition, the district agreed to revise its policies, procedures and regulations accordingly. .

42. Cases Regarding Transgender Students Doe v. Yunits, 2000 WL 33162199, Superior Court of Massachusetts (October 1 1, 2000). A court in Massachusetts barred a school district from preventing a transgender student to wear clothing or accessories that any other female student could wear to school without being disciplined. In this case, the student was instructed by the principal to come to his office every day so that he could approve the student's appearance. Some days the student would be sent home to change and the student eventually stopped attending school, citing the hostile environment created by the principal. The court held that the student's conduct was expressive speech, that the principal's conduct was an unlawful suppression of the student's speech, and that the student's conduct was not disruptive.

43. Cases Regarding Transgender Students Miles v. New York University, 979 F. Supp. 248 (S.D.N .Y. 1997). In this federal case from New York, the issue before the court was whether Title IX protects a biological male who has been subject to discriminatory conduct while being perceived as a female. Noting that the phrase “on the basis of sex" in Title IX is interpreted in the same manner as similar language in Title VII, the court held that a transgender female university student could proceed with a claim that she was sexually harassed by her professor on the basis of sex in violation of Title IX.

44. OCR Resolution Agreements Provisions of agreements include: • Allow access to facilities consistent with gender asserted at school • Provide training to staff about gender identity and expression • Monitor school climate

45. Issues to consider • Participation in physical education classes, interscholastic sports & extracurricular activities • The New York State Public High School Athletic Association (NYSPHSAA) recommends a four step process for determining participation in interscholastic sports. • Student’s home school is the first point of contact. • The student & parent/guardian puts request in writing to Superintendent and Athletic Director. • The school determines eligibility to participate based on criteria it has identified. • Athletic director informs NYSPHSAA in writing of district’s decision.

46. Issues to consider • Dress Code • District’s dress code should apply regardless of gender; enforcement of the dress code should not disproportionately impact transgender students • Filtering Software • Does the district’s filtering software prohibit access to websites with educational or supportive information for transgender students?

47. Recommendations • Educate staff, students and parents about gender identity and expression, and ensure understanding of transgender persons • Take a case-by-case approach to transgender students, within the context of ensuring equal access and opportunity, considering age, maturity, parental input, facilities available

48. Recommendations • When developing a plan for accommodating a transgender student, based on court case results, avoid requiring that the student use a single or gender-neutral bathroom or locker room • Conduct school climate surveys periodically

49. Challenges districts face • Discomfort of some in the community • Instances where a parent disapproves of the child’s gender identity or expression • Handling the process of transition • If the child is undecided

50. Status of the Law Title VII makes it unlawful for a covered employer to "fail or refuse to hire or to discharge any individual, or otherwise to discriminate with respect to his compensation, terms, conditions, or privileges of employment," or to “limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee" because of, among other things, sex.