From Kirsch-Goodwin & Kirsch, PLLC
Transgender is
an umbrella term for persons whose gender identity or expression (masculine,
feminine, other) is different from their sex (male, female) at birth. Gender
identity refers to one’s internal understanding of one’s own gender,
or the gender with which a person identifies. Gender expression is
a term used to describe people’s outward presentation of their gender. Gender identity and sexual orientation are
different facets of identity. Everyone has a gender identity and a sexual
orientation, but a person’s gender does not determine a person’s sexual
orientation. Transgender people may
identify as heterosexual, homosexual, bisexual, or none of the above. (Centers for Disease Control, Lesbian,
Gay, Bisexual, and Transgender Health, https://www.cdc.gov/lgbthealth/transgender.htm.)
The
acronym LGBTQ stands for “lesbian, gay, bisexual, transgender, queer, or
questioning,” and is an expansion of the abbreviation “LGB” which in turn
replaced the term “gay” back in the last century.
There
is more in the news lately about transgender student rights, but the United
Stated Department of Education’s Office of Civil Rights (“OCR”) addressed it
back in 2010 in a “Dear Colleague” letter about bullying. There, OCR informed schools that
“Although Title IX does not prohibit discrimination based
solely on sexual
orientation, Title IX does protect all students, including lesbian, gay, bisexual, and trans-gender (LGBT) students, from sex discrimination.” (Dear Colleague Letter: Harassment and Bullying,
October 26, 2010.) As OCR explained, in
such cases, schools have “an obligation to take immediate and effective action
to eliminate the hostile environment.”
The CDC provides guidance on what schools
can do. This includes implementing
evidence-based policies, procedures, and activities designed to promote a
healthy environment for all students, encourage the creation of LGBTQ student-led
and student-organized school clubs (such as gay-straight alliances or
gender and sexuality alliances open to student of all sexual orientations and
genders), encourage respect for all students and prohibit bullying, harassment,
and violence against all students, identify “safe spaces” such as counselors’
offices or designated classrooms where LGBTQ student can receive support from
administrators, teachers, or other school staff, ensure that health curricula
or educational materials include HIV, other STD, and pregnancy prevention
information that is relevant to LGBTQ students (such as ensuring that curricula
or materials use language and terminology, provide trainings to school staff on
how to create safe and supportive school environments for all students,
regardless of sexual orientation or gender identity, and encourage staff to
attend these trainings, facilitate access to community-based providers who have
experience providing health services, including HIV/STD testing and counseling,
social, and psychological services to LGBTQ students.
Recent case (August 2020): The 4th Circuit U.S. Court of Appeals, which
encompasses Virginia, West Virginia, Delaware, Maryland, North Carolina and
South Carolina, struck down a Virginia school board’s bathroom policy
segregating students with gender identity issues. The policy limited bathroom use to
“corresponding biological genders” and required students with
“gender identity issues” to use alternative facilities. The 4th Circuit found that the
policy violated a transgender male student’s constitutional rights and rights
under Title IX. (Title IX provides that
no person “shall, on the basis of sex, be excluded from participation in, be
denied the benefits of, or be subjected to discrimination under any educational
program or activity receiving Federal financial assistance….” 20 U.S.C. §
1681[a] ; see also 34 C.F.R. § 106.31[a].) The student was initially allowed to
use the boy’s bathroom, but the community complained and the board amended its
policy to state that the use of bathrooms “shall be limited to the
corresponding biological genders, and students with gender identity issues
shall be provided an alternative appropriate private facility.” The student sued saying that the board’s
policy singled him out and discriminated against him for being transgender in
violation of both his 14th Amendment rights and Title IX. The District Court agreed and granted him
summary judgment. The 4th
Circuit affirmed. Grimm v. Gloucester
County Sch. Bd., (4th Cir. 8/26/20).
The Ninth Circuit and other courts
around the country have similarly ruled, striking down bathroom policies that
exclude transgender students. See, Parents
for Privacy v. Barr, 949 F.3d 1210 (9th Cir. 2020), Whitaker v. Kenosha
Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034 (7th Cir. 2017), A.H.
v. Minersville Area Sch. Dist., 290 F. Supp. 3d 321 (M.D. Pa. 2017).
This link will take you to resources
available on the internet: https://www.cdc.gov/lgbthealth/youth-resources.htm#school
