The law trends toward transgender students

Courts and the federal government are granting more rights and privileges for transgender students to be who they feel they are in schools and at school events.

Two years ago, Coy Mathis, an angel-faced 1st grader, caused a sensation at Eagleside Elementary School in Fountain, Colo. Born biologically male, Coy dressed and identified as a transgender female and insisted on using the girls’ bathroom at school. School officials said absolutely not.

Meanwhile in Maine, a school district reacted to controversy and reversed a decision that had allowed Nicole Maines, a transgender 5th grader who was born male, to use the girls’ bathroom.

Both rebuffs sparked legal clashes and are symbolic of a still-unfolding nationwide drama for K-12 public schools. Educators in large and small communities increasingly confront delicate issues surrounding transgender students — youngsters who feel trapped by the gender designation of the body they were born into and either socially or medically transform to what they feel is their true identity.

While reluctant parents and uncomfortable peers might pressure schools to restrict transgender students, the law and evolving notions of gender identity are trending the other way. Court decisions, human rights commissions, and the U.S. Department of Education have predominantly sided with transgender students on access and nondiscrimination. California even passed a law.

Given that reality, principals, teachers, superintendents, school boards, and attorneys have a duty to embrace policies and practices that respect a student’s wishes while factoring in pragmatic concerns of propriety and safety.

In Colorado, the Civil Rights Commission ruled in favor of Mathis, the transgender 6-year-old. She had been told her only options were to use the boys’ room, the nurse’s bathroom, or the staff bathroom. Fountain-Fort Carson School District 8 officials said its obligations under the law were unclear.

The Maine dispute had a similar triumph via the courts. Born Wyatt Maines, Nicole identified with girls beginning at 2-years-old. In the early grades, she had permission to use the girls’ bathroom. In 5th grade, a boy followed Nicole into the bathroom on two occasions. He said his grandfather had told him that if Nicole could use the girls’ bathroom, so could he.

Court decisions, human rights commissions, and the U.S. Department of Education have predominantly sided with transgender students on access and nondiscrimination.

Afterward, the school district concluded that Nicole would be required to use a single-stall, unisex, staff bathroom and follow the same practice in middle school.

The Maine Human Rights Commission had previously ruled that discrimination occurred when the district barred Nicole’s use of the girls’ bathroom. Nicole and her parents sued the Regional School Unit 26 in Orono.

The Maine Supreme Judicial Court ruled 5-1 that the Maine Human Rights Act included the right of a transgender student to use the bathroom of choice. The court praised the school district for exploring Nicole’s needs through a Section 504 disability plan. The Maine high court concluded that, “Decisions about how to address students’ legitimate gender identity issues are not to be taken lightly.”

The court added, “where, as here, it has been clearly established that a student’s psychological well-being and educational success depend upon being permitted to use the communal bathroom consistent with her gender identity, denying access to the appropriate bathroom constitutes sexual orientation discrimination.”

While bathroom issues are the most prominent conflict, questions also can arise out of rooming arrangements, field trips, proms, and dances, or over whether to insist that a child be in the process of gender reassignment to trigger policies. Still more issues may stem from school portrait dress codes, bullying, and harassment.

Being a good sport

Participation on sports teams is particularly problematic for transgender students. The traditional separation by gender acknowledges that muscle mass, speed, and other elements reflect born boy-girl differences. So fairness comes into play.

In February 2014, the Virginia High School League unanimously adopted a policy allowing transgender students who have undergone sex reassignment surgery or taken hormone treatments to join a sports team that fits their identity.

On January 1, 2014, California became the first state to legally require school districts to let transgender students choose their bathroom, pick a sports team to play on, and use their self-identified locker room. While Connecticut and Massachusetts and 16 others have statewide policies and New York City has a similar approach, California is the first to embed a mandate into state law.

Still, a law cannot necessarily change someone’s mind. In March 2014, a transgender student in the West Contra Costa Unified School District near San Francisco was sexually assaulted. Jewlyes Gutierrez, who is biologically female but transgender, was assaulted leaving the boys’ bathroom at Hercules Middle/High School. Gutierrez was pushed back into a stall and called names during the attack. He was taken to the hospital and released to his parents.

In Louisville, Ky., a Christian-based group, Alliance Defending Freedom, is challenging a policy adopted by a school-based council at Atherton High School to let transgender students choose their bathroom.

Federal endorsement

Despite that opposition, the U.S. Department of Education’s Office for Civil Rights (OCR) has made it clear that harassment or discrimination against transgender students qualifies as a violation of Title IX of the Education Amendments of 1972. They’ve advertised that position in publications as well as through enforcement actions.

OCR and the U.S. Department of Justice’s Civil Rights Division in July 2013 settled a complaint involving a transgender middle school student in the Arcadia (Calif.) Unified School District. The OCR and the justice department said the district “prohibited the student from accessing facilities consistent with his male gender identity, including restrooms and locker rooms at school, as well as sex-specific overnight accommodations at a school-sponsored trip to an off-site academic camp.”

Arcadia agreed to allow the student to use the bathroom, locker room, and sleeping quarters consistent with his male identity. In addition, the district agreed to amend its policies, train staff, and provide appropriate supports for all transgender students.

Conclusion

To be honest, transgender status is about a lot more than genitalia. That fact alone makes for admittedly complex judgments for schools. Not all students who are transgender will undergo sex reassignment surgery. Gender identity can be different from sexual orientation. Issues that once arose in high school or late middle school are cropping up more often in elementary school.

Last, but not least, is the psychological effect. Transgender students suffer the excruciating fate of clearly standing out — when childhood bliss is generally defined as completely fitting in.

Yet, the heads-up educator should recognize that the law is moving toward acceptance and nondiscrimination. While opponents of transgender access experience isolated victories, the overwhelming evidence is unmistakable. Prudent decision makers must swallow any feelings of animus, do what’s best for the student, and save the district the headache of legal hassles.