Transcript Legal Issues Associated with Transgender Students

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Legal Issues
Associated with
Transgender
Students
Metro Bureau “Lunch & Learn”
Wednesday, October 7, 2015
Presented by
Kevin T. Sutton
Lusk & Albertson PLC
www.LuskAlbertson.com/Transgender
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How Did We Get Here?

First Transgender Groups – 1950s and 1960s
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Christine Jorgensen / Virginia Prince
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Transsexuals / Transvestites – 1970s and 1980s
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Rise in LGBT Organizations – 1990s and 2000s

Entertainment Leads the Way – 2010s
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Challenges
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Historical Concepts of Man/Woman
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Religious Beliefs
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Politics
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Societal Dynamics/Structure
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Social Acceptability

Practical Considerations
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Reactive, Not Proactive Laws
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Vernacular

Transgender
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Sex
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People whose gender identity is different from that associated
with their sex assigned at birth
Physical attributes and characteristics used to assign someone as
“male” or “female” at birth
Gender

Relationship between physical traits and one’s internal sense of
self as male, female, both, or neither (gender identity), as well as
one’s outward presentation and behaviors (gender expression)
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Gender Identity - One’s personal sense of being male,
female, both, or neither
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Gender Expression - How a person expresses their gender
through presentation and behavior (name, pronoun use,
clothing, hair style)
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Vernacular (cont.)
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Gender Dysphoria
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Sexual Orientation
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Intense and personal discomfort with the primary and secondary
sex characteristics of one’s assigned birth sex
One’s sexual or romantic attraction to people of a specific gender
Transition
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The process by which a transgender individual begins to live life
as the gender with which they identify, rather than the gender
associated with their sex
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Headlines
What do we see happening around the nation?
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From the News Desk …
“Transgender Girl is High School Homecoming Queen”
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Kansas City, MO
Student transitioned during high school
Participated on co-ed cheerleading team; cheered two years as a
boy and was then allowed to wear girls’ cheer uniform
“Bathroom Access for Transgender Teen Divides Town”
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Hillsboro, MO
Transgender female (age 17) began appearing as a girl at school
Wore skirts, makeup, wig
Started using girls’ locker room for gym class despite school’s
offer of single-occupancy restroom
Students staged competing protests
Students said girls felt uncomfortable changing in front of a boy
3 Board members resign / "Would I stand by and let somebody
hurt him? No. But I won't stand by and let him make a donkey out
of that school and be in there with a bunch of young girls. That's
as asinine as it could get."
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From the News Desk (cont.) …
“Pittsburgh High School’s Rules for Accommodating
Transgender Students Could be Model for District”
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Transgender student can choose name on ID and gender
pronouns
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Locker rooms treated the same as bathrooms
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Prom dress code was not gender specific; rules for suits and
dresses rather than male and female
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School currently has transgender female student who is a
sophomore; said she was bullied and teachers didn’t know how to
treat her
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Student and her mother met with school to confirm her choice to
use girls’ bathroom, which is a process any student must do to
exercise that right
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Other students organized teacher-training workshops, put up
posters, and advocated for safety at school
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From the News Desk (cont.) …
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“Nebraska High School Athletic Association Likely to
Adopt Policy Soon on Participation of Transgender
Athletes in Sports”
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Currently, transgender students in Nebraska can only participate
in sports based on gender of birth certificate, with exception of
sports that aren’t offered for both genders (football and wrestling)
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In 2013, considered policy that let transgender students
participate in sports of preferred gender if they could show
through statements by family and note from doctor that they truly
identified as that gender
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What Legal Standards Exist?
A review of federal and state laws
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Sources of Law - Federal
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Title IX
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Prohibits discrimination based on sex in any educational program
or activity receiving federal financial assistance
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Courts have recognized that Title IX’s prohibition on sex
discrimination includes protections against discrimination and
harassment on basis of failure to conform to sex stereotypes and
gender identity
FERPA
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Protects students’ educational record and personally identifiable
information from being publicly disclosed
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Includes student’s birth name
Title VII
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Does not expressly prohibit discrimination on the basis of gender
identity; cases suggest protections in place, however
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Sources of Law - State
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18 states (+ D.C.) presently have laws prohibiting
discrimination against transgender individuals
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California, Colorado, Connecticut, Delaware, Hawaii,
Illinois, Iowa, Maine, Maryland, Massachusetts,
Minnesota, Nevada, New Jersey, New Mexico, Oregon,
Rhode Island, Vermont, Washington, Washington D.C.
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Absent from the list  Michigan
200 cities and counties nationwide that have
prohibited gender identity discrimination,
including:
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Atlanta, Buffalo, Cincinnati, Dallas, Indianapolis, Kansas
City, Milwaukee, New Orleans, New York City,
Philadelphia, Phoenix, Pittsburgh, San Antonio
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Absent from the list  Any Major City in Michigan
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Sources of Law - State
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17 states (+ D.C.) presently have laws specifically protecting
transgender students in public schools from discrimination
and harassment
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Some explicitly apply to education/students
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Others include public schools places of public accommodations
where bans on gender identity discrimination apply
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Some cover some or all non-religious private schools
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States have general bans on bullying and harassment but don’t
mention gender identity specifically
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Absent from the list  Michigan
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State Law - Example
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California
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Assembly Bill No. 1266 (“School Success & Opportunity Act”)
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Requires that a pupil be permitted to participate in sexsegregated school programs and activities, including athletic
teams and competitions, and use facilities consistent with his or
her gender identity, irrespective of gender listed on pupil’s
records
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Signed into law in 2013
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Sources of Law - Michigan
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Elliott Larsen Civil Rights Act
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Does not include transgender status
as a classification protected from
discrimination
Executive Directives
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Signed by Gov. Granholm
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E.D. 2003-24
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E.D. 2007-24
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Prohibit employment discrimination
based on sexual orientation and/or
gender identity or expression
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Limited to state employees only and
do not provide for a private right of
action
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Executive Directive 2003-24
A. A department, board, commission, or other agency
subject to supervision by the Governor under Section 8
of Article V of the Michigan Constitution of 1963 shall not
do any of the following:
1. Fail or refuse to hire, recruit, or promote; demote;
discharge; or otherwise discriminate against a person
with respect to employment in the classified service,
compensation, or a term, condition, or privilege of
employment in the classified service, because of religion,
race, color, national origin, age, sex, sexual orientation,
height, weight, marital status, partisan considerations, or
a disability or genetic information that is unrelated to the
person’s ability to perform the duties of a particular job
or position.
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Executive Directive 2007-24
A. A department, board, commission, or other agency subject to
supervision by the Governor under Section 8 of Article V of the Michigan
Constitution of 1963 shall not do any of the following:
1. Fail or refuse to hire, recruit, or promote; demote; discharge; or
otherwise discriminate against a person with respect to employment in
the classified service, compensation, or a term, condition, or privilege of
employment in the classified service, because of religion, race, color,
national origin, age, sex, sexual orientation, gender identity or
expression, height, weight, marital status, partisan considerations, or a
disability or genetic information that is unrelated to the person’s ability to
perform the duties of a particular job or position.
2. Limit, segregate, or classify an employee or applicant for employment in
the classified service in a way that deprives or tends to deprive the
employee or applicant of an employment opportunity or otherwise
adversely affects the status of an employee or applicant because of
religion, race, color, national origin, age, sex, sexual orientation, gender
identity or expression, height, weight, marital status, partisan
considerations, or a disability or genetic information that is unrelated to
the person’s ability to perform the duties of a particular job or position.
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Interpreting Executive Directives
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2003-24
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Really apply to transgender or gender identity?
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“Sex” and “Sexual Orientation” not defined
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Controversial
2007-24
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“Gender identity or expression” means the perception by an
individual or another person of the gender identity, appearance,
behavior, or expression of the individual whether or not that
gender identity, appearance, behavior, or expression is different
from the gender identity, appearance, behavior, or expression
traditionally associated with the sex assigned to the individual at
birth
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Much more specific
Application to State employees only
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Athletics
The discussion becomes even more complicated
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Transgender Students & Athletics
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3 states presently allow transgender students to participate
in sports consistent with their gender identity
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California, Connecticut, and Washington
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Most states have no clear policy on this issue, which leaves school
districts to establish their own policies
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State Athletic Associations develop own rules:
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North Carolina and Georgia – can only play sport of gender on
birth certificate
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Idaho - require either hormone therapy or operation before
transgender student can play sports for gender of which they
identify
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Iowa - let students participate if they can show they
“consistently” identify as a different gender
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Laws Under Consideration
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South Dakota
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Legislative committee votes to draft bill to require transgender
student-athletes to play on teams based on gender listed on birth
certificate (2015)
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Could change state high school athletic association policy that
allows transgender students to play sports for gender of which
they identify
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However, under this policy transgender students have to submit
a request to the association and documents affirming their
gender identity
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Have to ensure the student isn’t identifying as one gender to
“gain an unfair competitive advantage.”
State Reps weigh in
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Recommend genital inspection to determine eligibility
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“This is South Dakota. We haven’t adopted the East Coast
culture. We haven’t adopted the West Coast culture. We
maintain our own culture.”
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MHSAA
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The Michigan High School Athletic Association (MHSAA)
adopted a Transgender Policy at its May 2012 Representative
Council Meeting to approve policies and procedures by
which the MHSAA executive director will determine the
eligibility of transgender students in MHSAA tournaments;
policies and procedures are to be provided to schools when
requested on a case-by-case basis
Transgender Student Eligibility – Motion by Karen Leinaar,
supported by Pete Ryan, to approve policies and procedures
by which the MHSAA executive director will determine the
eligibility of transgender students in MHSAA tournaments.
Adopted. The document is to be provided to schools when
requested on a case-by-case basis.
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NCAA Student Athletes
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Allows transgender students to participate in sex-segregated
sports consistent with their gender identity as long as they’re
receiving hormone therapy
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Transgender woman must take testosterone suppression
medication for at least a year before competing on female
team
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Court Cases
What does the judiciary have to say about this?
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Doe v. Regional School Unit 26
2014 ME 11; 86 A.3d 600 (Me 2014)
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First time a court declared transgender individual must be able
to use sex-segregated bathroom facility of the gender the
individual identifies with
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Transgender female student began identifying as a girl in
elementary school
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No problems until a boy followed her into girls’ bathroom
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School stopped allowing her to use the girls’ room
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Parents filed a complaint against the school alleging violation of
Maine Human Rights Act, unlawful discrimination in education
and place of public accommodation based on sexual orientation
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Case ultimately settled and the school district had to pay $75K
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EEOC v. RG & GR Harris Funeral
2015 U.S. Dist. LEXIS 52016 (ED Mich 2015)
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Facts:
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Decision:
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Transgender female brought a Title VII claim against her funeral home
employer when she was dismissed from employment after transitioning from
male to female
The Sixth Circuit declared that transgender status is not a protected class
under Title VII; however, any person, including transgender people, can bring
sex-stereotype gender discrimination claims under Title VII pursuant to a Price
Waterhouse theory
Rationale:
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When an individual’s failure to conform to sex stereotypes is the reason for an
adverse employment action, can bring a claim
Because the transgender female was able to allege that her failure to conform
to sex stereotypes was the “driving force” behind the funeral home’s decision
to fire her, the EEOC had sufficiently plead a sex-stereotyping gender
discrimination claim under Title VII and the court denied the funeral home’s
motion to dismiss the EEOC’s claims.
See Price Waterhouse v Hopkins, 490 US 228 (1989); U.S. Supreme Court
declared that individuals cannot be discriminated against based on sexstereotypes, including the failure to conform to behaviors and appearance
associated with one gender, under Title VII.
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G.G. v. Gloucester County Sch Bd
Case No. 14-54 (E.D. Va. Sept. 17, 2015)
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Facts:
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School board voted to require all students to use restroom
associated with physical sex; 16 year old transgender male
student filed suit against district alleging policy unconstitutional
ACLU filed suit on his behalf, argued policy violates Title IX,
discriminates on basis of sex, which includes gender identity and
transgender status
School had already changed student’s name in records, used male
pronouns, let him participate in homebound PE program, and
provided private, unisex bathroom
Decision:
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Title IX claim precluded by Department of Ed regs that allow
schools to provide separate bathrooms based on sex so long as
they are comparable
Dismissed Title IX claim and DENIED motion for preliminary
injunction to use boys’ bathroom
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Johnston v. Univ. of Pittsburgh
2015 U.S. Dist. LEXIS 41823 (WD Penn 2015)
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Facts:
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Plaintiff born female and transitioned to male: held himself out as
male, diagnosed by psychotherapist with Gender Identity
Disorder, began hormone treatment, changed his name
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Took male weight lifting classes, used male locker room but then
told he had to use unisex locker room reserved for referees
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When he requested access to men’s room, he was told he had to
change gender in school records, which could only be done by
presenting court order or birth certificate
Decision:
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Claims for Equal Protection, Title IX, Sex Stereotyping all
Dismissed
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Tooley v. Wyandotte Schools et al
U.S. District Court, E.D. Mich (Hon. Avern Cohn)
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Presently pending in federal court
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Biological female, presenting as male
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Claims the district refused to use male pronouns, restricted
bathroom access to a faculty restroom, called student by
female name in front of students, and “outed” student as
female to parents of another student
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Federal civil rights and due process claims advanced
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Motions to dismiss filed
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USDOJ and USDE filed a “Statement of Interest”
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Case is in the discovery phase
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Statement of Interest
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Filed on behalf of “The United States”
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Argues that claims of discrimination based on gender
identity are consistent with sex-stereotyping claims
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Offers analogy:
“Imagine that an employee is fired because she converts
from Christianity to Judaism. Imagine too that her
employer testifies that he harbors no bias toward either
Christians or Jews but only “converts.” That would be a
clear case of discrimination “because of religion.” No
court would take seriously the notion that “converts” are
not covered by the statute. Discrimination “because of
religion” easily encompasses discrimination because of a
change of religion.”
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Other Court Decisions
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Kastl v. Maricopa Cnty. Comm. College Dist.
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2004 WL 2008954, at *2-3 (D. Ariz. June 3, 2004), aff’d, 325 Fed. Appx.
492 (9th Cir. 2009)
Denying motion to dismiss Title VII and Title IX sex discrimination
claims by transgender plaintiff denied access to restrooms, finding
that “neither a woman with male genitalia nor a man with
stereotypically female anatomy, such as breasts, may be deprived of a
benefit or privilege of employment by reason of that nonconforming
trait”
Glenn v. Brumby
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663 F.3d 1312, 1320-21 (11th Cir. 2011)
Finding “ample direct evidence” that plaintiff, a transgender woman,
had been discriminated against because of sex where defendant
testified that his decision to fire her was based “on his perception of
[plaintiff] as ‘a man dressed as a woman and made up as a woman,’
and … ‘on the sheer fact of the transition’”
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Other Court Decisions (cont.)
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Oncale v. Sundowner Offshore Serv., Inc.
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523 U.S. 75, 79 (1998)
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Holding that Title VII prohibits same-sex sexual harassment and
explaining “[s]tatutory prohibitions often go beyond the principal
evil to cover reasonably comparable evils, and it is ultimately the
provisions of our laws rather than the principal concerns of our
legislators by which we are governed.”
Rentos v. OCE-Office Sys.
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No. 95-civ-7908, 1996 WL 737215, at *1, 8-9 (S.D.N.Y. Dec. 24, 1996)
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Denying defendant’s motion to strike transgender plaintiff’s sex
discrimination claim alleging disparate treatment due to her “sex
background and subsequent change.”
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Other Authority
A look at other decisions/declarations from outside
the court system
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OHSA Best Practices:
A Guide to Restroom Access for Transgender Workers
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Issued June 1, 2015
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OSHA Sanitation Standards require employers to provide
employees with bathrooms, most are separate for men and
women
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Transgender employees don’t know which one to use or are
denied access to a particular bathroom
Model practice – All employees should be permitted to use
the restroom that corresponds to their gender identity
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Single-stall unisex bathrooms are an alternative but not required
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Employees should not be required to provide medical/legal
documentation of gender identity to be permitted access to the
restroom of their gender identity
Not a law or regulation; just “guidance”
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NY State Dept. of Education
Guidance for Creating a Safe and Supportive Environment for
Transgender and Gender Nonconforming Students
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Issued in July 2015
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Key elements of guidance:
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Inform themselves of the proper definitions of transgender terms
and ask the transgender student which terms the student prefers
to be used
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Recognize that rates of bullying and harassment are higher
among transgender and gender-nonconforming (GNC) students
and implement appropriate policies
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Work with the student on a case-by-case basis regarding
confidentiality. Some students may not want to inform their
parents of their transgender status
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Establish a plan with the student to maintain the student’s safety
which also includes how to properly refer to the student in
communications with parents or guardians
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NY State Dept. of Education
Guidance for Creating a Safe and Supportive Environment for
Transgender and Gender Nonconforming Students
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Key elements of guidance (cont.):
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Accept the student’s assertion of his/her/their own gender
identity
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Other resources may be used to confirm a student’s gender
identity, such as a letter from an adult, a family member or friend,
clergy, counselor, or medical provider; however, in most cases
nothing beyond a statement from the student should be required
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There should be no threshold medical or mental health diagnosis
or treatment required to have a student’s gender identity or
transition process recognized by the school
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Refer to the student with the pronouns that the student prefers; a
memorandum sent to the student’s teachers regarding proper
pronoun use may be helpful; school officials and staff must act as
role models in proper pronoun use
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NY State Dept. of Education
Guidance for Creating a Safe and Supportive Environment for
Transgender and Gender Nonconforming Students
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Key elements of guidance (cont.):
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The student’s birth name should be kept confidential. The district
should only allow access to the student’s confidential record by those
who have a legitimate educational interest. Records with the student’s
birth name should be kept in a separate, confidential file, and the
student’s education records should be updated to include the
student’s preferred name.
School nurses and other medical providers should use the student’s
chosen name when dealing with the student, but may use the
student’s birth name when necessary to ensure the student receives
proper care, to coordinate proper health care with other medical
providers, and to file health insurance claims.
Districts should try to eliminate gender-based activities, rules,
policies, and practices to the extent that they are marginalizing to
transgender or GNC students. For example, a school that has boys
and girls wear different color graduation commencement gowns may
change their policy to have all students wear the same colored gown.
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NY State Dept. of Education
Guidance for Creating a Safe and Supportive Environment for
Transgender and Gender Nonconforming Students
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Key elements of guidance (cont.):
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Transgender students should be allowed to use the restroom of
the gender to which they identify. Alternative accommodations,
such as single sex bathrooms or private changing areas, may be
made available to students who request them, but should not be
forced upon any student.
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Where physical education classes are separate for each gender,
the student should be allowed to participate in the class of the
gender to which he or she identifies.

Student leaders and school officials should become familiar with
law, guidance, and resources and act as role models within the
school.
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Arcadia Unified School District
DOJ No. DJ 169-12C-70 / OCR No. 09-12-1020 (July 24, 2013)

Settlement agreement resolving a complaint pressed by the USDE and
filed on behalf of an unnamed California student who was born female
but wanted to be recognized as male

The complaint in that case alleged that school officials in the Arcadia
Unified School District prevented the female student from using the
boys’ bathrooms and locker rooms in sixth and seventh grades on the
sole basis that she was, anatomically, female

The complaint also alleged that school officials did not allow the student
to stay in a cabin with boys during a district-sponsored overnight camp.
Instead, the student was allegedly required to stay in a cabin separate
from both male and female students. In resolving the complaint, the
school district committed to treating transgendered students in the
same manner as those students of the sex with which the transgendered
students identify
“All students, including transgender students and students who do not
conform to sex stereotypes, are protected from sex-based
discrimination under Title IX and Title IV.”
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Macy v. Holder
Appeal 0120120821, Agency ATF-2011-00751 (April 23, 2012)
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Facts:
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Transgender woman named Macy applied for a post with ATF
At the time of his application, Macy was still presenting himself as a male
Director of the laboratory allegedly told Macy that he would receive the
position if the results of his criminal background investigation were satisfactory
After the Bureau learned that Macy was transitioning from male to female, he
was informed that the position had been cut due to a federal budget reduction.
Director hired someone else for the position
Decision:


Title VII’s prohibition of discrimination based on sex includes discrimination
based on transgender identity
When an employer discriminates against an individual because he or she is
transsexual, this discrimination is “related to the victim’s sex” regardless of
whether the discrimination is “because the individual has expressed his or her
gender in a non-stereotypical fashion, because the employer is uncomfortable
with the fact that the person has transitioned or is in the process of
transitioning from one gender to another, or because the employer simply
does not like that the person is identifying as a transgender person.”
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Common Themes/
Practical Guidance
How have the most frequently occurring issues
been handled in Michigan or other jurisdictions?
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Common Themes
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
Topics:
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Pronoun/name usage
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Bathroom usage
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Sports teams

Student records
Outcomes:

Focused on individual rights

Individual > Group
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Amendment of the Student Record



Enrollment

Use birth certificate

MCL 380.1135 “shall provide … the student’s birth certificate”

Creation of official student record

No mention of amending the student record thereafter
FERPA

Parent can move/ask to amend if “inaccurate, misleading, or in
violation of the student’s rights of privacy” / 34 CFR 99.20

Parent has right to challenge and request a hearing; can place
statement of disagreement in record / 34 CFR 99.21

Transgender apply?
District not prohibited from amending student record; birth
certificate not dispositive
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Amendment of the Student Record

Consider Outside Sources

Massachusetts Dept. of Ed


For transgender students, however, a documented gender
marker (for example, “male” or “female” on a permanent
record) should reflect the student’s gender identity, not the
student’s assigned sex. This means that if a transgender
student whose gender identity is male has a school record that
reflects an assigned birth sex as female, then upon request by
the student or, in the case of young students not yet able to
advocate for themselves, by the parent or guardian, the school
should change the gender marker on the record to male.
Seattle Public Schools

To the extent the District is not legally required to use a
student’s legal name and gender on school records or
documents, the District should use the name and gender by
which the student identifies.
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Restroom Usage

Consider court cases / outside sources

NY Dept. of Ed guidance

Colorado – a male first grade student who identities as a girl, won
approval from the Colorado Rights Division to use the girls
bathroom at school

Seattle Public Schools – schools should allow students to use the
restroom that it consistent with the gender identity they
consistently assert at school

Massachusetts Dept. of Ed - In all cases, the principal should be
clear with the student (and parent) that the student may access
the restroom, locker room, and changing facility that
corresponds to the student’s gender identity. While some
transgender students will want that arrangement, others will not
be comfortable with it. Transgender students who are
uncomfortable using a sex-segregated restroom should be
provided with a safe and adequate alternative, such as a single
“unisex” restroom or the nurse’s restroom
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Restroom Usage

Massachusetts Dept. of Ed:

All students are entitled to have access to restrooms, locker rooms
and changing facilities that are sanitary, safe, and adequate, so
they can comfortably and fully engage in their school program
and activities. In meeting with the transgender student (and
parent) to discuss the issues set forth in this memorandum, it is
essential that the principal and student address the student’s
access to the restrooms, locker room and changing facility. Each
situation needs to be reviewed and addressed based on the
particular circumstances of the student and the school facilities.
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Other Practical Considerations**

Term “transgender” is an adjective; using term as verb
(“transgendered”) or noun (“transgenders”) can be offensive

Create an individualized Gender Support Plan or Gender Transition Plan for
transgender students going through transition

Offer to assist transgender students in making disclosures to family, friends,
peers or other school staff

Keep copy of student’s birth certificate with biological sex confidential; in
student information system, use student’s preferred name and pronouns

Use student’s preferred name and pronouns; instruct other staff
members to do the same

Make dress-code guidelines gender neutral; transgender students can
dress according to their gender identity as long as it complies with the
dress code

Don’t put any requirements on accepting a student’s own gender identity;
their word is enough

Allow transgender students to use the restroom (and locker rooms) of the
gender of which they identify
+
Other Practical Considerations**

Allow transgender students to enroll in the PE class of the
gender of which they identify

On overnight field trips, allow transgender students to room with
other students of the gender of which they identify

Play on sports teams of their preferred gender

Allow them to run for homecoming or prom court of the
gender of which they identify

Provide services to help students cope with lack of family
support

Provide family-related services like group counseling for all
family members

Student may be eligible for a 504 Plan due to the anxiety,
depression or psychological distress; 504 Plan can include
student’s preferred name and pronoun and appropriate
restroom use
+
See Also …

Model Policy Transgender and Gender Nonconforming
Students

Published by Gay, Lesbian & Straight Education Network (GLSEN)
and National Center for Transgender Equality
+
Questions?
+
Additional Questions?
Kevin T. Sutton
Direct: (248) 988-5695
Cell: (734) 377-7400
Email: [email protected]