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Establishing a Transgender Policy

Joel Gerring

By Joel Gerring, MASB Assistant Legal Counsel

DashBoard, April 1, 2015

At present there are no federal laws with respect to discrimination protections for transgender students. Likewise, Michigan has no laws that specifically deal with this student classification. However, this past December, the Department of Education provided additional guidance with respect to single-sex classes including transgender students.

According to the DOE, “all students, including transgender students and students who do not conform to sex stereotypes, are protected from sex-based discrimination under Title IX. Under Title IX, a recipient generally must treat transgender students consistent with their gender identity in all aspects of the planning, implementation, enrollment, operation and evaluation of single-sex classes.” Hence, even in the absence of state or federal laws, districts can and do face Office of Civil Rights investigations concerning these students.

Obviously, schools have the same obligation to protect transgender students from harassment and intimidation as they do for everyone. Likewise, disciplinary action taken against a student for failing to conform to stereotypical gender behaviors (such as disciplining a biologically male student who identifies as a female for wearing make-up), has been held by the OCR to be a discriminatory action.

Often, complaints filed with the OCR by a transgender student involve situations in which a district refuses to allow that student to utilize the restroom or locker room of the gender they self-identify with. Once the OCR becomes involved and the full ramifications of such an investigation become clear, these districts often enter into voluntary resolution agreements wherein they institute specific policies that allow transgender students to use the facilities of the gender they identify with, as well as pledge to treat transgender students in accordance with their self-declared gender in all respects. Allowing these students to use private restrooms (or faculty restrooms) has been included as an appropriate alternative only when requested by the student.

The fact that community members may object to a policy that allows a transgender student into the “opposite sex” bathroom would appear to be of little consideration. Indeed, judicial guidance tends toward the view that deferring to the biases of others as a basis to discriminate against a protected class is the equivalent of acting on behalf of one’s own prejudices, and therefore still constitutes discrimination. 

The Gay, Lesbian & Straight Education Network has devised model policies for districts seeking to “get out ahead” of any potential issues, as has the Educational Materials Center. MASB certainly encourages all districts to become familiar with these potential issues and, to the extent possible, create policies and guidelines that not only serve your community appropriately, but will demonstrate that your district is being proactive should you face an OCR complaint in the future. School districts should know and understand that the ACLU is actively encouraging members of the transgender community to be aggressive with respect to defending their civil rights and, in the absence of specific state and federal laws, the OCR will be the agency that most turn to for investigation and enforcement.

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