According to a survey conducted in 2011 by the Williams Institute at the UCLA School of Law, it was estimated that 0.3% of adults (approximately 700,000 people) in the United States consider themselves transgender. While no accurate surveys have been released estimating the number of minors who identify as transgender, school districts increasingly are being asked to accommodate transgender students and/or students who do not identify with their “birth gender.” This likely is due to transgender students being more comfortable discussing or making public their gender identity. Social media, television shows, and movies featuring transgender individuals have also made it more acceptable for individuals to publicly identify as transgender. Therefore, it is important that superintendents, administrators, and board members be aware of the current legal requirements so their districts will be better able to process requests for accommodations made by transgender students.
In January, the United States Department of Education advised that, when a school district provides separate restrooms, locker rooms, shower facilities, housing, athletic teams, or single-sex classes to opposite sexes, Title IX requires the school district to treat transgender students consistent with their gender identity and not require transgender students to use facilities consistent with their birth (or natal) gender. The Department of Education also encouraged school districts to offer gender-neutral, individual-user facilities for transgender students who do not feel comfortable using shared sex-segregated facilities. See United States Department of Education Statement on Transgender Students’ Access to Facilities (Dear Colleague Letter to Emily T. Prince, Esq., January 7, 2015).
The United States Department of Education’s guidance is consistent with a recent decision issued by the Supreme Court of Maine and a finding by the Colorado Civil Rights Division. In Doe v. Reg’l Sch. Unit 26, 86 A.3d. 600 (Maine, 2014), the Supreme Court of Maine found that a school district engaged in discrimination by requiring a transgender female student to use a unisex, noncommunal bathroom and by prohibiting the student from using the girls’ restroom facilities. Likewise, the Colorado Civil Rights Division found that the Fort Carson School District violated the state’s anti-discrimination law when it initially allowed a first-grade male-to-female transgender student to use the girls’ restroom, but then reversed course and required the student to use only the boys’ restroom. See Colorado Charge No. P20130034X.
However, multiple federal courts recently have rejected the United States Department of Education’s position of expanding rights in favor of transgender students. In March, the United States District Court for the Western District of Pennsylvania issued a decision involving the University of Pittsburgh and its expulsion of a transgender student for using school facilities consistent with the student’s gender identity. In Johnston vs. University of Pennsylvania, W.D.Penn. Case No. 3:13-213, 2015 WL 1497753 (Mar. 31, 2015), the Court ruled in favor of the University after it expelled Johnston, a transgender male student who, despite several citations and disciplinary hearings, continued to utilize locker room facilities and restrooms consistent with his gender identity rather than his birth gender as a female. The Court found that Title IX’s prohibition on discrimination “on the basis of sex” only referred to the traditional binary conception of sex consistent with one’s birth or biological sex, not an individual’s gender identity. Therefore, the student could not assert an action for discrimination due to his gender identity.
In a high-profile case from Virginia, the United States District Court for the Eastern District of Virginia rejected a transgender student’s Title IX action against a school board after the school board prohibited the student from using the restroom facilities consistent with the student’s gender identity. In G.G. ex rel. Grimm v. Gloucester County School Board, E.Dist.Va. Case No. 4:15cv54, 2015 WL 5560190 (Sept. 17, 2015), G.G. was born as a female, but beginning at a very young age did not feel like a girl. G.G. began living in accordance with his male gender identity in all respects and started hormone treatment around the age of fourteen. In August 2014, G.G. notified school officials that he was transgender and that he had officially changed his name. G.G. initially agreed to use a separate restroom in the nurse’s office. However, in October 2014, G.G. requested to use the male restroom because he found it stigmatizing to use a separate restroom. The school principal agreed to G.G.’s request. Upon learning of the situation, community members began expressing their disapproval and requested that the Gloucester County School Board prohibit G.G. from using the male facilities. By a 6-1 vote, the Board adopted a resolution stating that the use of restroom and locker room facilities “shall be limited to the corresponding biological genders, and students with gender identity issues shall be provided an alternative private facility.”
G.G. challenged the resolution on the basis of Title IX and the Equal Protection Clause of the Fourteenth Amendment. In upholding the Board’s action by dismissing G.G.’s claim under Title IX, the Court advised that Title IX allows school districts to provide separate restroom and locker room facilities based on “sex” as long as the facilities are comparable. In this regard, the Court interpreted the regulation as allowing a school district to provide separate facilities based upon the biological sex of a student. The Court acknowledged that its decision was contrary to the current position of the United States Department of Education as provided in its Dear Colleague Letter. However, the Court noted that the government agency could not supplant its regulations through the use of a letter and guidance document. The Court advised that the Department of Education is entitled to amend its regulations, but to do so it must go through the notice and comment procedure as required by the Administrative Procedure Act before the amendment can be valid.
Nevertheless, boards of education in Ohio should be cautious in placing complete reliance upon the Virginia decision because, although it provides persuasive authority, it is not binding upon courts in Ohio. In particular, the Virginia federal Court has not yet ruled on G.G.’s claims under the Equal Protection Clause. Moreover, the federal government has advised that it will continue to pursue protections for transgender students based upon its interpretation of Title IX. See United States Department of Education, Office for Civil Rights, Letter to Illinois Township High School District 211, OCR Case No. 05-14-1055 (November 2, 2015).
Interscholastic sports are often considered an integral part of a student’s educational experience and transgender students may wish to participate with their peers on the school athletic teams. In November 2014, the Ohio High School Athletic Association (“OHSAA”) issued a policy on transgender student participation in athletics. As a general matter, the regulations allow a student, regardless of birth gender, gender identity or gender transition, to always participate on the boys’ athletic team. However, if a student wishes to compete on a girls’ team, whether it be a transgender female or transgender male taking medically-prescribed hormone therapy, the OHSAA must confirm that the student does not possess a physical or physiological advantage over genetic females of the same age group. Pursuant to the OHSAA guidelines, once a school district is notified by a transgender student of the student’s desire to participate in athletics, the district must notify the OHSAA. The OHSAA Commissioner’s Office will conduct a hearing to determine if the transgender student is eligible to participate on the desired athletic team. The process is confidential and the student is granted a right to appeal the decision of the Commissioner’s Office to an appeal committee.
Since the need to accommodate transgender students will only grow, I recommend that, if a transgender student contacts the school district, the school district should develop a plan to accommodate that student to ensure that the student receives equal access to an education, is safe while at school, and has an opportunity to integrate socially with other students. The Administration should schedule a meeting with the student and the student’s parents to discuss the specific circumstances and desires of the student. Each transgender student is unique and may have different requests for accommodation of the student’s needs. An accommodation that would be acceptable for one student cannot be assumed to work for others. In addition to the student, parent and administration, input from guidance counselors, teachers and other school staff may be necessary for developing a plan. Due to the sensitive and evolving landscape of this issue, legal consultation may be necessary to determine whether the plan developed for accommodating the student is compliant with the current law. After receiving the necessary input, the district should develop a plan, within the bounds of the law, which will reasonably accommodate the transgender student’s needs.