In order to support children that identify as transgender, it’s important to have a clear understanding of what it means to be transgender. “Sex, gender, and sexuality are three different concepts. Sex refers to a complex combination of physiological characteristics, including chromosomes, hormones, and anatomy. Sex is often thought of as a binary: male or female…people are intersex, meaning that their physical bodies do not conform to standard definitions of male and female” (Blackless et al., 2000). Despite these variations, sex is regularly assigned at birth based on the appearance of external genitalia. In contrast to sex, gender is one’s internal sense of identity. It is generally assumed that male and female babies will develop gender identities as boys and girls, respectively. People whose gender identity matches their sex assigned at birth are known as cisgender, while people whose gender identity does not match their sex assigned at birth are known as transgender. (Mangin et al., 2018)
As educators and schools become more aware of the needs of their diverse student bodies, there is an increased expectation that policies and procedures will be implemented to support an inclusive and welcoming environment for all students. It is important for educators and school leaders to be well versed in the legal rights of students, in general and for students who identify as transgender in specific, in order to remain legally compliant. The Constitutional First Amendment rights of students in K-12 extend to all students while in the school building and participating in school sanctioned events. These First Amendment rights are protected as long as they maintain their safety and the safety of others. Additionally, these rights are protected as long as they do not disrupt the operations of the school. The relationship between schools and students First Amendment rights are explained below:
1. Freedom of Speech: Students have the right to express their opinions, ideas, and beliefs, but schools can limit speech that disrupts the learning environment or infringes on the rights of others.
2. Freedom of Expression: This includes the right to wear clothing or accessories with political or social messages, as long as it does not cause a substantial disruption.
3. Freedom of Religious Expression: Students can engage in religious activities and expression as long as they are not disruptive or coercive to others.
4. Freedom of Press: Students have the right to publish school newspapers and express their opinions through writing, but schools can regulate content to ensure it is appropriate for the educational setting.
In general, it’s important for schools to balance students’ rights while maintaining a safe and productive learning environment. Laws protecting transgender students primarily focus on ensuring equal access to education, safety, and protection from discrimination. There are many court rulings that have affirmed the rights of transgender students, such as the right to use facilities corresponding to their gender identity and protection from discriminatory practices. Additionally, there are federal and state educational departments that issue guidance documents to schools in order to bring attention to protections for transgender students. These protections include respecting their chosen name and pronouns, providing access to facilities consistent with their gender identity, and ensuring a safe and supportive learning environment. Under the Fourteenth Amendment, states cannot “deny to any person within its jurisdiction the equal protection of the law.” (Hachiya, 2022)
Title IX of the Education Amendments of 1972 prohibits discrimination based on sex in federally funded education programs, which has been interpreted to include protections for transgender students. “In the most recent developments in 2021, the U.S. Department of Education issued a ‘Notice of Interpretation’ stating that the Office of Civil Rights (OCR) will enforce Title IX prohibition on discrimination on the basis of sex to include discrimination based on sexual orientation and discrimination based on gender identity. This interpretation is based on the 2020 SCOTUS decision in Bostock v. Clayton County that held that discrimination against a person based on their sexual orientation or gender identity is discrimination on the basis of sex, which is prohibited under Title VI of the Civil Rights Act of 1964 (U.S. Department of Education, 2021a).” (Hachiya et. al., 2022)
There are also protections that fall under individual state and local laws. Many states have enacted specific laws protecting transgender students from discrimination in schools, covering areas such as restroom and locker room access, gender identity recognition, and protection from harassment and bullying. Overall, these laws and guidelines aim to ensure that transgender students can fully participate in educational opportunities without facing discrimination or harassment based on their gender identity. As we become more familiar with laws that protect transgender students, it is equally important to know the legal rights of transgender students. Students that identify as transgender should be able to benefit from the following rights:
- Not to be disciplined or be treated differently because they are transgender or gender non-conforming
- Treated with respect and not harassed or bullied because they are transgender
- Equal educational opportunities
- Use of locker rooms and restrooms that are consistent with a student’s gender identity
- Equal opportunities to participate in athletic or extracurricular activities and other school events
- Expression of their transitioned gender at school and dress according to their gender identity so long as they follow appropriate dress rules that apply to all students
- Referred to by their preferred names and pronouns
- Not to be compelled to provide personal and medical information to school officials, and school officials must not disclose personal information about a transgender student without the student’s consent (Mangin, 2018)
The decision of school leaders to not establish and enforce school policies to protect the rights of all their students is where we see schools and school systems liable and at risk for litigation and damages. There are many legal issues involving children who identify as transgender that may arise in a K-12 school setting. “Many transgender individuals experience extensive stigma and discrimination and suffer mental health consequences as a result of these experiences, which manifest in, among other things, increased rates of depression and suicide…Many are subjected to harassment and bullying both from other students and from school staff…In addition to this, too many transgender students are denied access to facilities needed for an equitable education. Administration and faculty too often refuse to recognize transgender students’ preferred names and gender pronouns; deny transgender students’ access to sex–segregated facilities such as locker rooms or restrooms in accordance with their gender identities; deny the ability to participate in sex– segregated athletics; apply dress codes in ways that deny transgender students the opportunity to express their gender identities; and impinge transgender students’ privacy protections by seeking or revealing information about their biological sex, gender identity, or gender transition…” (National Education Association, 2016)
The issue of transgender students using school bathrooms has been a major topic of debate in recent years. The main point of contention is the ability of schools to ensure the rights and dignity of transgender students while also addressing concerns about privacy, safety, and comfort for all students. For transgender students, using the bathroom that aligns with their gender identity is crucial for their well-being and mental health. Under Title IX protections, transgender students have the right to use bathrooms and facilities that match their gender identity. Considering the political shifts over the last decade, there are gaps and uncertainty revealed. In 2016, during the Obama administration, guidance was issued by the Departments of Education and Justice affirming that Title IX protects transgender students’ right to use bathrooms and locker rooms consistent with their gender identity. In 2017, the Trump administration rescinded the Obama-era guidance, leaving the issue to be addressed at the state and local levels. This resulted in conflicting policies across different states and school districts.
Many states and local jurisdictions have enacted laws and policies to protect transgender students’ rights in school facilities. Some states explicitly affirm transgender students’ rights to use bathrooms corresponding to their gender identity, while others have implemented restrictions or lack clear guidance. There have been various legal challenges and court cases regarding transgender students’ bathroom access. Courts have issued differing opinions, highlighting the ongoing legal debate and the need for clarity at the federal level. “In Adams v. Sch. Bd. of St. Johns Cnty. Florida (2020), the appellate court held in favor of a transgender student ruling only on equal protection grounds for the student, who challenged a school board policy that barred him from the boys’ restroom. In an early ruling, the same court held in favor of the student on both equal protection grounds and Title IX discrimination. The language in the decision of the majority and dissent represented a sharp divide on the issue. In C.C. v. Harrison Cnty. Bd. of Educ. (2021), the West Virginia Supreme Court of Appeals reversed a lower court. The assistant principal confronted a transgender male student in a restroom who demanded he expose his genitalia and use a urinal…the assistant principal was suspended but later reinstated…based on the district’s failure to adopt an anti-harassment policy.” (Hachiya, 2022) These two cases highlight why school principals should stay updated on local laws and policies regarding transgender rights in schools. School leaders should collaborate with students, families, and school system legal experts to develop inclusive and respectful policies that uphold both transgender rights and the rights of all students.
The most effective way for institutions to comply with their legal obligations is to develop effective policies that take into account the legal rights of transgender students and treat such students with dignity and respect. By being proactive, institutions can be prepared to comply with the law and guard against reactions that are motivated by fear or a lack of understanding about transgender people. The NEA itself has partnered with several groups to develop and circulate “Schools in Transition: A Guide to Supporting Transgender Students in K-12 Schools,” which contains excellent guidance on making schools a safe and supportive environment for transgender students. (Mangin, et. al., 2018) After reviewing the document, school principals can work with internal and external stakeholders to develop policies that promote acceptance and inclusivity while deterring harassment and discrimination.
A key strategy to demonstrate acceptance and inclusivity would be to create safe spaces around the school that display terminology, posters, and symbols to promote messaging of support. These safe spaces would be available to all students and designed to encourage introspection and wellness. They would include seating, fidgets, sensory output and input devices, and artistic expression opportunities. Schools could consider the use of music and scents to aid in calming students. As a deterrent for harassment and discrimination, we would offer gender-neutral bathrooms and establish policies that allow any student to use the bathrooms that correspond to their gender identity. Within this policy, there would be clear consequences for students and staff that violate the policy.
In order to best prepare staff to embrace the usage of preferred bathrooms by transgender students, I would start by establishing a common understanding of gender identity and expression and the difference between sexual identity and gender identity. There is a need to make certain we are using key terms with compassion and knowledge. I would then take a risk management approach to ensure staff are knowledgeable from a legal perspective. I would share relevant federal, state, and local laws protecting transgender students’ rights in schools. As a staff, we would familiarize ourselves with school district policies and procedures related to gender identity, bathroom use, and anti-discrimination policies. I would then work with students, staff, and family to determine what the creation of an inclusive environment would look like for our school community. I would emphasize the importance of creating a welcoming and supportive school climate for all students, regardless of gender identity. I would engage all stakeholders in efforts to promote respect, empathy, and understanding among students and staff.
In order to solidify a proactive approach, I would also implement Restorative Justice and Restorative Practices to address bias, stereotypes, and discriminatory behaviors related to gender identity. Through RJ and RP, staff would be taught how to intervene effectively in instances of harassment or bullying targeting transgender students. Additionally, we would establish best practices for addressing transgender students’ specific needs, including bathroom access, pronoun usage, name changes, and confidentiality. We would include the entirety of the school community by sharing resources and guidance on accessing supportive services such as counseling, healthcare, and community organizations. Most importantly, we would develop protocols for addressing concerns or conflicts related to bathroom use in a respectful and inclusive manner. By addressing these key areas in training sessions, school staff can better understand and support transgender students’ rights and needs, including their use of bathrooms consistent with their gender identity. Ongoing education and open communication are essential for creating the safe and inclusive school environment that is meant to be provided for all students, regardless of their identity expressions.