Transgender rights: What administrators need to know

Schools must let transgender students use restrooms and locker rooms that correspond gender identity
By: | June 16, 2016

The rights of transgender students in K12 schools became explicitly clear in a directive issued by the U.S. Department of Education and Department of Justice in May. Schools must let transgender students use the restrooms and locker rooms that correspond to their gender identity, not what’s listed on birth certificates, the Obama administration says.

“This is a watershed moment for transgender students” says Nathan Smith, director of public policy at the Gay, Lesbian & Straight Education Network (GLSEN). “The guidance is clear that the law in place protects transgender students, and discomfort from others because of a student’s differences is no reason to deny that student protection under civil rights law.”

The letter follows the DOE’s 2014 order that protects transgender students from discrimination under Title IX. And this latest policy goes beyond bathrooms: Transgender students should also be identified by their preferred name and gender pronouns, and may not be disciplined for participating in activities consistent with their gender identity.

“Sometimes people have fears based on stereotypes about what they think will happen in that locker room—in truth the transgender student is probably more afraid and more sensitive about privacy issues than other students” says Olabisi Okubadejo, an attorney at Ballard Spahr LLP in Phoenix, who works with schools on reviewing and drafting policies regarding transgender students.

Some 82 percent of transgender youth reported feeling unsafe at school in a 2011 study conducted by the National Center of Transgender Equality.

If schools violate this directive, a student, parent or advocacy group could file a complaint with the departments of education and justice, which could lead to a Title IX investigation, Okubadejo says. Ultimately, the DOE could withhold funding from a district that is not complying, though this is a rare punishment. More often, the school will revise or develop policies to comply with Title IX.

At press time, 12 states had filed a lawsuit against the federal government over the new guidelines.

Policy in action

J.M. Atherton High School, part of Jefferson County Public Schools in Louisville, Kentucky, created a transgender nondiscrimination policy in spring 2014 when a staff member alerted Principal Thomas Aberli that a student was preparing to transition from male to female.

The policy gave transgender students access to restrooms and locker rooms matching their gender identity.

Aberli alerted parents via email and a letter home, and held staff trainings. Only a few parents expressed concern. “There has been no issue in the over two years we’ve had this policy” Aberli says. “We’ve had no incidents at our school with its implementation.”

About half a dozen students in the school of about 1,300 identify as transgender, he says.

Outsiders in the state were more concerned than anyone in the school community, Aberli says. “This is such a non-issue in our schools—our kids find it very amusing that there’s so much attention to it now” he adds. “Change can be scary and uncomfortable for people, but one person’s comfort does not negate someone else’s civil rights.”

Transgender compliance tips

Olabisi Okubadejo, an attorney at Ballard Spahr LLP in Phoenix, recommends administrators do the following to ensure compliance with the directive:

  • Ensure existing discrimination policies protect gender identity districtwide, or create new policies that do.
  • Train teachers and administrators on what to do if a transgender student seeks assistance. Advocacy groups are a good place to find information and training.
  • Think more broadly than restrooms—do teachers know what name and gender designation to use for each student?
  • Develop a plan for when a student moves from middle to high school, in terms of receiving the correct records with the name aligned with the student’s gender identity.
  • Have discussions with all parents to help them understand protocols for ensuring the safety of all students. For example, many locker rooms have separate stalls for privacy.

The departments of justice and education issued a document, “Examples of Policies and Emerging Practices for Supporting Transgender Students” describing different district and state policies that already align with the guidance.

GLSEN also offers a model policy, available free online.