Abstract and Keywords
Controversies over school policies that impact transgender students have garnered increased attention in recent years. For example, some transgender students have been prohibited from using the restroom that aligns with their gender identity, and others have not been addressed by their preferred names. Thus, in this chapter, we focus on cutting-edge issues that relate specifically to transgender students. In doing so we explore the legal landscape related to transgender student inclusion. We will begin with an overview of relevant research, followed by a presentation of the legal framework and finishing with a discussion of important legal issues, including topics such as access to facilities, privacy, pronouns and student records, athletics, and dress codes. As this chapter will demonstrate, unprecedented efforts in research have revealed alarming inequities experienced by transgender individuals. Concurrently, with some limitations or exceptions, there is a growing body of legal authority that has been successfully relied upon to protect the rights of transgender students. To be certain, the law impacting transgender individuals is multifaceted and evolving. Of notable significance, transgender students who have initiated legal claims against school districts for their discriminatory practices have all ended in favorable outcomes for the students.
In February 2018, the U.S. Department of Education announced that it will no longer investigate the civil rights complaints from transgender students who are barred from using restrooms that match their gender identities in schools.1 The Department of Education’s Office for Civil Rights (OCR) accepts complaints that allege civil rights violations and enforces these decisions. Under the previous administration, OCR found that prohibiting students from using the restroom that aligned with their gender identities was a form of sex discrimination in violation of Title IX of the Education Amendments of 1972. The current administration does not agree that Title IX provides protections for transgender students to use the restroom that aligns with their gender identities. The new approach to no longer investigate civil rights complaints will likely leave the transgender students more vulnerable in school and is inconsistent with related court decisions and other agency interpretations of sex discrimination.2 The former head of OCR called the Department’s approach “appalling and deeply dangerous.”3
Controversies over school policies that impact transgender students have garnered increased attention in recent years.4 This chapter will explore the legal landscape related to transgender student inclusion. We will begin with an overview of relevant research, followed by a presentation of the legal framework and finishing with a discussion of important legal issues, including topics such as access to facilities, privacy, pronouns and student records, athletics, and dress codes. As this chapter will demonstrate, unprecedented efforts in research have revealed alarming inequities experienced by transgender individuals. Concurrently, with some limitations or exceptions, there is a growing body of legal authority that has been successfully relied upon to protect the rights of transgender students.
Experiences of Transgender Students
Gauging the ways that policies and practices impact transgender individuals is not easy, particularly since data is limited.5 Despite the scarcity of data, medical groups and researchers have begun to weigh in on this matter. The American Academy of Pediatrics wrote:
Transgender children are already at increased risk for violence, bullying, harassment and suicide. They may be more prone to depression and engaging in self-harm … Policies excluding transgender youth from facilities consistent with their gender identity have detrimental effects on their physical and mental health, safety and well-being.6
In recognition of this concern, in 2014, the Williams Institute at UCLA released a report identifying best practices for surveys in regard to transgender individuals.7
Also, although there is limited data, some researchers and national organizations have been able to collect meaningful data about the experiences of transgender individuals. In 2015, a behavioral health survey, which included 18,494 high school students in Madison, Wisconsin, found that 1.5 percent of students identified as transgender.8 According to GLSEN’s 2015 School Climate Survey, an alarming 85.3 percent of transgender students experienced LGBT discrimination. The survey reported that 75.8 percent of transgender students felt unsafe based on their gender, 59.2 percent of transgender students experienced verbal harassment, 23.3 percent of transgender students experienced physical harassment, and 11.11 percent of transgender students experienced physical assault based on their gender. Transgender students also avoid spaces because they do not feel safe or because they feel uncomfortable. Specifically, 69.5 percent of transgender students avoid bathrooms, 56.2 percent avoid locker rooms, and 43.8 percent avoid physical education classes. Moreover, 60 percent of transgender students were required to use the bathroom or locker room of their legal sex. Over 50 percent of transgender students were denied the opportunity to use their preferred name or pronoun. These experiences also play out in the implementation of dress codes. To illustrate, 28 percent of transgender students were prohibited from wearing particular clothing because it did not correspond with the students’ legal sex.9
These patterns similarly occur in the administration of student discipline.10 According to the 2015 U.S. Transgender Survey, 20 percent of individuals who publicly identified as transgender or were perceived as transgender believed that they faced harsher disciplinary consequences than other students. Further, 36 percent faced discipline for defending themselves against students who bullied them, and 6 percent were expelled from school. “Seventeen percent (17%) faced such severe mistreatment as a transgender person that they left a K–12 school.”11 These findings are consistent with a growing body of peer-reviewed educational research. Harassment and bullying on the basis of gender can impact academic outcomes,12 increase substance use,13 and risk of suicide.14 Despite these trends in data, school district employees are often not trained to promote transgender student inclusion.15
In school districts with inclusive policies, transgender individuals thrive.16 Russell et al. recently found that permitting students to use their chosen or preferred name decreases their risk of suicide and depression.17 Inclusive curriculum, Gay Straight Alliances, comprehensive bullying and harassment policies, and supportive educators improved the educational experiences of transgender students.18 Moreover, research demonstrates that teacher support and professional development matters.19 The issues documented in the literature illustrate the need to prioritize legal protections for transgender students in schools. The related legal issues will be discussed in the next section.
Legal research addresses a wide range of issues where law can impact transgender students in unique ways, such as gender definition,20 athletics,21 dress codes,22 speech,23 and bullying and harassment.24 A number of legal theories or sources of legal authority relate to transgender student inclusion. The Fourteenth Amendment’s Equal Protection Clause and Substantive Due Process Clause, the First Amendment, Title IX of the Educational Amendments of 1972, the Family Educational Rights and Privacy Act (FERPA), and state laws and regulations determine the rights of transgender students and the responsibilities of school districts as they relate to transgender students. Although not exhaustive, these sources of legal authority serve as the primary framework for the present analysis. We briefly highlight some of these legal avenues.
Federal Constitutional Protections
Transgender students might argue that school officials have violated their Fourteenth Amendment right to receive equal protection of the laws when they are denied access to restrooms that align with their gender identity or when school officials adopt discriminatory dress code policies. In Equal Protection Clause jurisprudence, classifications based on gender are analyzed under intermediate scrutiny. Thus, in order for a school district’s restroom policy to not violate the Equal Protection Clause, it must promote an important governmental interest and the classification employed must be substantially related to the achievement of that objective. Laws or policies that do not target a suspect class are subject to rational basis review. These policies will be upheld if the classification “bears a rational relation to some legitimate end.”25 Heightened scrutiny is advantageous for transgender students who experience discrimination; under rational basis review it is much easier for school officials to create policies that treat transgender students differently in comparison to the general population.
Although not as widely discussed, the Substantive Due Process Clause of the Fourteenth Amendment may provide some protections for transgender students as well. Under this clause, courts and scholars have noted that there is a constitutional right to privacy.26 Constitutional law scholar Laurence Tribe stated that “the single core common to all of what passes under the privacy label [is] autonomy with respect to the most personal of life choices.”27 For example, in Lawrence v. Texas, the U.S. Supreme Court found a state anti-sodomy law to be unconstitutional under the Substantive Due Process Clause as it violated one’s right to privacy.28 Also, in Obergefell v. Hodges, the Court held that same-sex couples have a constitutional right to marry under the Due Process Clause.29 Thus, it is not surprising that some constitutional scholars contend that there may be a right to “gender-autonomy” or a right to self-determine one’s gender that is free from state control under the Substantive Due Process Clause.30
The First Amendment might also be at issue with transgender rights in schools. In Tinker v. Des Moines Indep. Cmty. Sch. Dist., the U.S. Supreme Court examined the First Amendment rights of students in public schools.31 The Court ruled that there needs to be a material and substantial disruption in the school in order for students’ private political speech to be limited. The Court also found that student speech may not interfere or collide “with the rights of other students to be secure and to be let alone.”32 Under this standard, transgender students have a First Amendment right to express themselves through their clothing unless it creates a substantial disruption.33 Although school officials have argued that it is disruptive when transgender students dress in a way that aligns with their gender identity, no court has found this to be the case.34 Likewise, anti-LGBTQ speech might be curtailed without violating another student’s First Amendment rights if it interferes with the rights of others.35
Federal Statutory Law
Similar to the Equal Protection Clause of the Fourteenth Amendment’s prohibition of discrimination, Title IX of the Education Amendments of 1972 requires, in part, “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program….”36 In a Title IX claim, the plaintiff needs to demonstrate that (1) the plaintiff was excluded from participation in an educational program; (2) the program receives federal funding; and (3) the exclusion involved was on the basis of sex.37 Title IX’s regulations do permit separate restrooms, for example, on the basis of sex. However, most transgender students would argue that sex is determined with reference to gender identity. One federal court observed that gender identity is akin to sex because it is “deeply ingrained and inherent in their very beings.”38
In a 2014 letter, the Assistant Secretary for Civil Rights clarified that transgender students are protected from sex-based discrimination under Title IX.39 In May 2016, the U.S. Department of Justice and the U.S. Department of Education issued a “Dear Colleague” letter further highlighting school districts’ responsibilities to provide equal access to transgender students.40 The Trump administration rescinded this letter.41 As noted, OCR will no longer investigate Title IX claims filed by transgender students who argue they have been discriminated against when school officials prohibit them from using the restroom that aligns with their gender identities.
Another federal law that is sometimes at issue is FERPA. This law requires that school officials protect the privacy of students’ educational records.42 It gives parents certain rights with respect to their children’s educational records; these rights transfer to the student at age 18 or when the student attends a school beyond the high school level. FERPA also permits school officials to discuss student information when there is a “legitimate educational purpose.”43 The law provides a right for students to seek to amend their school records if said records are “inaccurate, misleading, or in violation of the student’s rights of privacy.”44 Transgender students who desire to change their names and gender identities on their educational records, for example, can seek such an amendment under FERPA.
State Statutory Law
State law is another important source of legal authority to consider. As of 2018, fifteen states and the District of Columbia have enacted laws to explicitly prohibit discrimination in schools based on gender identity.45 Also, in the aftermath of the withdrawal of the 2016 Guidance and OCR’s recent decision to no longer investigate complaints related to bathroom and locker room access for transgender students, some states clarified and reinforced their commitment to supporting transgender students. For example, the New York State Education Department and the State of New York Office of the Attorney General stated that “the USDOE’s announcement has no bearing upon school districts’ independent duties, under New York State law, to protect their transgender students and ensure those students’ equal access to all school resources and programming.”46 Moreover, both offices in New York questioned the strength of the USDOE’s position in light of federal case law: “We note that even after USDOE rescinded its Title IX guidance in 2017, school districts in other states have faced legal action under both Title IX and other federal law—e.g., federal constitutional claims—for restricting transgender students’ access to bathrooms consistent with their gender identity.”47 Grounded in the legal framework presented in this section, the following section will discuss specific areas of legal activity.
Court cases are about “real people and real events,” and a court’s ruling will impact a transgender student’s ability to participate fully in all aspects of school.48 Thus, we examine cases related to transgender students trying to access facilities as well as students who have alleged that their rights to privacy have been violated. We also analyze other legal issues related to preferred names, athletics, and dress codes. A discussion of these cases and legal issues will inform school officials and policymakers about the current legal landscape of transgender rights in schools.
Access to Facilities
Controversies about access to facilities typically involve a transgender student who would like to use a restroom that aligns with his or her gender identity.49 Consider, for example, Coy Matthis. Coy was assigned the sex at birth of male, but from an early age began to identify as a female. While in elementary school, she dressed in stereotypically female clothing, and all of her friends and teachers referred to her as female. Her parents had to file a complaint with the Colorado Civil Rights Commission in order for her to be able to use the restroom that aligned with her gender identity.50 The Commission agreed that Coy should be permitted to use the restroom that aligned with her gender identity.
Many school districts have adopted inclusive policies that have been implemented without any issue.51 Some school officials have denied such requests, however, arguing that they violate the privacy rights of other students.52 It is not surprising, then, that this issue has generated litigation in recent years.53 Most of the lawsuits involve Title IX, the Equal Protection Clause, and/or state law claims. The outcomes of these decisions will impact school policy within those jurisdictions as well.
To date, two circuit courts, six federal district courts, and one state supreme court have examined access issues, and the end result was a favorable outcome for transgender students in every case. The federal circuit courts have also found that analogous federal civil rights laws prohibit discrimination based on gender identity. Although the case law continues to evolve, these recent cases are beginning to suggest a trend that transgender students should be permitted to use restrooms that align with their gender identities. The Fourth and Seventh circuit cases are examined below in order to provide illustrative examples for school districts and policymakers. These decisions provide greater clarity about how courts have interpreted Title IX, the Equal Protection Clause, and state laws that protect transgender students from discrimination.
In the Fourth Circuit, a transgender male student had been diagnosed with gender dysphoria, a condition that is related to stress stemming from conflict between one’s gender identity and physical sex at birth.54 In his treatment letter, his doctor suggested that he be treated as a boy in every way. Although school officials permitted him to use the male restroom for several weeks, after some complaints from adult community members, the board changed its policy and he was no longer permitted to use the male restroom.55 The student thought that this new policy would stigmatize and isolate him; he filed a motion for a preliminary injunction.56
Denying his motion for a preliminary injunction and granting the school district’s motion to dismiss the Title IX claim, the federal district court held that the student failed to show that using the male restroom would not infringe upon the privacy rights of the other students.57 According to the federal district court, the Department’s Guidance on this issue was not consistent with Title IX’s regulations. Specifically, the court observed that a school may provide separate restroom and locker room facilities on the “basis of sex” under the existing Title IX regulations.58 The student’s attorney interpreted the regulations in a way that was consistent with the Department (i.e., sex is determined with reference to gender identity).
On appeal, the Fourth Circuit also observed that the regulations permit restrooms and locker rooms to be segregated by sex, but at the same time noted that the regulations are “silent as to how a school should determine whether a transgender individual is a male or female for the purpose of access to sex-segregated restrooms.”59 It reversed the district court’s dismissal of the Title IX claim, ruling that the lower court did not give the Department’s interpretation of the regulation appropriate deference.60 After several different proceedings, in May 2018, the district court denied the school district’s motion to dismiss the transgender student’s claims under both Title IX and the Equal Protection Clause.61 The school district has appealed to the Fourth Circuit.
In 2017, the Seventh Circuit granted a transgender student’s motion for injunctive relief after he challenged his high school’s policy that prohibited him from using the restroom that aligned with his gender identity.62 The student, a high school senior who had been diagnosed with gender dysphoria, had used the male restroom for six months without incident before the school changed course. School officials required him to use the girls’ restroom or a gender-neutral restroom, which was far from his classrooms. He alleged that denying him access to the male restroom caused him depression and that he contemplated suicide. He also reduced his water intake to avoid using the restroom, which resulted in medical problems. The district court granted the student’s motion for a preliminary injunction. The Seventh Circuit affirmed, finding that it would cause irreparable harm to deny him access to the male restroom because the use of the boys’ restroom was necessary for both his transition and his emotional well-being. The court also observed that he would be likely to succeed on his Title IX claim and his equal protection claim.63 These two cases reaffirmed the legal rights and dignity of transgender students.
There have been a series of disputes related to transgender students being able to use the restroom or locker room that aligns with their gender identity in other federal district courts and in one state court. All of the federal district court cases64 and the state court cases65 ended in a favorable result for the transgender student. Taken as a whole, these court cases provide guidance to school leaders within the Fourth, Sixth, and Seventh Circuits. Likewise, school leaders in Colorado, Maine, Pennsylvania, and Ohio have some precedent to follow on this issue.
Those who argue that their rights to privacy have been violated are typically cisgender students66 who contend that sharing a restroom with a transgender student makes them feel uncomfortable. To illustrate, a federal district court in Pennsylvania denied the plaintiffs’ motion for a preliminary injunction. The plaintiffs, a group of cisgender students, sought to cease the school district’s practice of allowing transgender students to use the restroom and locker rooms that aligned with their gender identity.67 They argued that the school policy violated their fundamental right to bodily privacy. The court found this argument unavailing and did not discover any violations by the district of the plaintiffs’ constitutional privacy rights. For example, the school had instituted privacy protections and other alternatives for uncomfortable students. The Third Circuit Court of Appeals upheld this decision.68 In another case, a federal district court denied the cisgender students’ motion for a preliminary injunction because they could not demonstrate that they were likely to succeed on the merits of the case (under their privacy and Title IX arguments) or that they suffered any irreparable harm when transgender students used restrooms that aligned with their gender identities.69 The court pointed out that the plaintiffs had used restrooms with transgender students for three years without any incident. Most recently, a federal district court in Oregon rejected the cisgender students’ claim that their constitutional right to privacy was violated when transgender students were permitted to use the restroom that aligned with their gender identity. 70 Other courts have addressed similar privacy concerns as well. In one of the cases discussed above, the court found no legitimate privacy interest involved,71 and another court observed that that there were “many other ways to protect privacy interests in a non-discriminatory and more effective manner than barring [the transgender student] from using the boys’ restrooms.”72 These cases suggest that the privacy argument raised by cisgender students may be futile.
Both the access decisions and the privacy decisions provide much-needed guidance to school officials. For those schools located in states that are not within those jurisdictions that have court opinions on the matter, it may be a difficult issue to navigate. School officials should know that even though the Department of Education under the Trump administration rescinded the 2016 Guidance, school officials in all states may still choose to adopt policies that do not discriminate against transgender students. School officials might look to the “Best Practices” document that accompanied the 2016 Guidance73 or GLSEN74 for examples of nondiscriminatory policies.
Preferred Names, Pronouns, and Student Records
Preferred names and pronouns are directly linked to identity. Consequently, transgender students may request to be referred to by a particular name or pronoun that more accurately reflects their identity. For example, according to policy in the District of Columbia Public Schools, “[s]tudents have the right to be addressed by the name and pronoun that correspond to the student’s gender identity.”75 This practice extends beyond informal interactions with students and may implicate student records.
Specifically, FERPA and its corresponding regulations identify requirements related to notice, disclosure, and amendment or correction of records, which permit parents or eligible students to amend information in a student’s record that find “inaccurate, misleading, or otherwise in violation of the student’s privacy rights.”76 In addition to FERPA, Title IX has also served as a source of legal authority to inform school districts of their obligations related to student records.77
There are a number of nuances to consider with student records. For example, what if a student does not want their parents to know that they identify as transgender, but they want to be referred to by a particular name and pronoun in unofficial records? Recognizing these complexities, state education agencies have released related guidance. To illustrate, the New York State Education Department created guidance that addressed a wide range of issues. In regard to student privacy, the guidance specifically indicated that these situations should be addressed on a case-by-case basis:
The paramount consideration in those situations is the health and safety of the student and making sure that the student’s gender identity is affirmed in a manner in which the level of privacy and confidentiality is maintained necessary to protect the student’s safety.78
Another area of interest is participation in athletics. Title IX regulations provide a specific mandate around athletics:
No person shall, on the basis of sex, be excluded from participation in, be denied the benefits of, be treated differently from another person or otherwise be discriminated against in any interscholastic, intercollegiate, club or intramural athletics offered by a recipient, and no recipient shall provide any such athletics separately on such basis.”79
In determining equal opportunity, the regulations present a number of factors, including “the provision of locker rooms, practice and competitive facilities.”80
Beyond federal antidiscrimination laws, regulation of K–12 athletics occurs at the state level. For this reason, it is not surprising that policies vary by state. Some governing bodies mandate full inclusion for students, permitting students to participate in sports consistent with their gender identities. Others require transgender students to meet particular requirements, such as hormone therapy, surgery, or a birth certificate.81 The nature of these policies is best understood through example. To illustrate, in Texas, the University Interscholastic League’s Nondiscrimination policy explicitly states that “[g]ender shall be determined based on a student’s birth certificate. In cases where a student’s birth certificate is unavailable, other similar government documents used for the purpose of identification may be substituted.”82 In Ohio, transgender females can participate in female athletics if they have completed at least one year of hormone therapy, or they must show that they do “not possess physical (bone structure, muscle mass, testosterone, hormonal, etc.) or physiological advantages over genetic females of the same age group.”83 For transgender males, the process is even more complex. If a transgender male has not begun testosterone treatment, he is free to participate in male athletic teams. If, however, testosterone treatment has begun, a transgender male must present medical evidence to show:
(1) the muscle mass developed as a result of this testosterone treatment does not exceed the muscle mass that is typical of an adolescent genetic boy; (2) that the student has not started any hormone treatment (or that the testosterone treatment does not cause hormone levels to exceed normal levels); and (3) the student’s hormone levels are monitored by a licensed physician every three to six months.84
Taking a more inclusive approach, the California Interscholastic Federation states that “[a]ll students should have the opportunity to participate in CIF activities in a manner that is consistent with their gender identity, irrespective of the gender listed on a student’s records.”85 Recognizing state-by-state variability, the LGBT Sports Foundation funded a collaborative project that aimed to create a comprehensive, model policy for K–12 athletics. The policy addresses issues such as eligibility for participation, notice to schools and state athletic associations, and procedures related to eligibility determinations and confidentiality. Additional guidelines relating to facility access, travel accommodations, preferred names and pronouns, dress codes/uniforms, and considerations for competitions at other schools are also included.86
Each of these examples demonstrates that participation requirements may vary depending on geographic location. As a result, it is important for school district leaders, teachers, coaches, and parents to be aware of the rules that apply in their states when examining athletics participation for transgender students.
Transgender students also may experience discrimination with school dress code policies.87 While school dress codes have long been controversial, the combination of both social media and the resurgence of student activism have attracted recent attention to some of the current inequities related to these policies.88 Within protests about dress codes, students argue that policies and practices discriminate because they are sexist toward female students, noninclusive toward transgender students, and unfair toward gender nonconforming students. In order to avoid these controversies, there has been momentum in making dress codes more gender-neutral.89
Although there is not a lot of recent litigation on this specific issue, major news outlets report that it is a growing issue in schools. To illustrate, a school district in Texas prohibited a male student from wearing a red dress to the prom because school officials contended that it violated the student dress code.90 In 2016, a cafeteria employee told a male student that he could not wear a bow because he was not a girl. In response, students at the schools began a Twitter campaign #BowsforBoys to show their support. The district eventually moved the employee to a position where she no longer interacted with students.91 Students in Texas, California, and Arkansas were required to wear gender- conforming clothing in their yearbook pictures.92 Likewise, a CBS affiliate in Philadelphia recently reported that a transgender student’s yearbook picture was going to be removed because the clothing was considered to be too feminine.93 The few court opinions on gender nonconforming clothing that do exist raise legal concerns with the above issues. These cases are important to understand because of the factual analyses involved.
Within the litigation it appears that when school officials create policies that require gender-specific requirements, they may be inviting a sex-discrimination claim under Title IX94 and the U.S. Constitution. As discussed, under the U.S. Constitution, both the First Amendment (freedom of expression)95 and the Fourteenth Amendment (equal protection)96 could be at issue. In order for a student’s conduct to receive constitutional protection under the First Amendment, the student must demonstrate that his or her conduct is intended to convey a message that can be understood by others. For example, a transgender student might argue that she is trying to convey the message that she feels more comfortable dressed as a girl than a boy when she wears a dress to school. Also, if a transgender female is prohibited from wearing a dress while other female students are permitted to do so, the policy may raise equal protection concerns. There are also some state laws that provide protections as well. To illustrate, the California Student Safety and Violence Prevention Act of 2000 forbids discrimination or harassment in public schools against transgender and “gender non-conforming” students.97 This law would protect students from disciplining gender nonconforming students who dress consistent with their gender identities. A few illustrative cases highlight the legal issues that may arise. Not all of the cases discussed include a transgender student, but these cases are still relevant with regard to the implications for these types of policies. They are included in this discussion to assist school leaders who are grappling with this issue. In sum, the cases suggest that school officials must not discriminate against transgender students when creating student dress codes.
In one case, an eighth-grade student in Massachusetts who was assigned the sex of male at birth began wearing female clothing and expressed her identified gender as female in seventh grade. The principal sent the student who had been diagnosed with gender identity disorder home when she dressed in gender nonconforming ways. The student’s family initiated a lawsuit against the public school under state law in state court for its refusal to re-enroll her if she wore female clothing or accessories.98
A Massachusetts state court granted the student’s motion for a preliminary injunction, finding that her clothing conveyed a particular message related to her gender identity. The court reasoned that her ability to express her gender identity through dress was a “necessary symbol of her identity.”99
In another case, when the New York City Administration for Children’s Services prohibited a transgender female from wearing a dress at the all-male foster facility, she claimed the city violated both New York law and her First Amendment rights.100 She had been diagnosed with gender identity disorder, and an expert testified that it would cause her psychological harm if she were not to dress in a way that aligned with her gender identity. The court found that exempting her from the male dress code was a reasonable accommodation that the city needed to make.101
A few other cases have involved prom and yearbook pictures. A school district in Indiana, reached a settlement agreement after a transgender student was prohibited from attending the school prom in a dress. The principal prohibited the biologically male student from entering the prom because he violated the school’s student dress code, which banned clothing and accessories that advertised sexual orientation, sex, drugs, alcohol, or tobacco, or that expressed profanity or negative social or educational statements. The student sued, alleging that the principal’s actions violated the First and Fourteenth Amendments as well as other relevant laws. A federal district court denied the school district’s motion to dismiss, and the school district decided to settle the case for an undisclosed amount.102
Although dress code policies have occasionally been challenged in court on a variety of grounds, thus far no court has ruled that a school district does not have the authority to promulgate and enforce reasonable polices that define what is appropriate for students to wear to school.103 Nevertheless, as more students question their gender identities, school officials may need to rethink dress code policies if those policies contain bans against wearing clothing that falls outside traditional gender norms. As noted, in order to address sexism and LGBTQ discrimination, some school districts are adopting gender-neutral graduation dress policies that question conventional dress codes.104 In so doing, school officials must consider policies beyond only clothing to include hair, accessories, and makeup.
GLSEN suggests the following policy, which seems to align with court decisions discussed:
Schools may enforce dress codes pursuant to District policy. Students shall have the right to dress in accordance with their gender identity, within the constraints of the dress codes adopted by the school. School staff shall not enforce a school’s dress code more strictly against transgender and gender nonconforming students than other students.105
The Human Rights Campaign (HRC) also advises that student dress codes should not reinforce gender stereotypes in schools. Specifically, regardless of their gender, students in public schools should be afforded the same clothing choices.106 The HRC also highlights that dress code violations should be treated as minor infractions, and students should not be suspended for a simple dress code violation. School officials could examine other district’s dress code policies that have been carefully crafted to be inclusive. For example, the Portland Public Schools’ dress code policy has been touted as a model because it requires that certain clothing items must be worn and that specific body parts be covered.107 To be certain, crafting dress codes requires commitment and collaboration among the entire school population. In doing so, school officials can draft policy that preserves the dignity of each student while respecting their individuality. Moreover, by adopting such policies, school officials might be able to avoid the legal challenges that were discussed above.
As demonstrated in this chapter, the law impacting transgender individuals is multifaceted and evolving. For present purposes, we focused on cutting-edge issues that relate specifically to transgender students. It is worth noting that the issues discussed in this chapter may impact other populations within the LGBTQ community as well. Moreover, this chapter is not intended to be exhaustive in that there are other related issues that influence the lives of transgender people and the LGBTQ community more broadly. For example, as evidenced in the data cited at the beginning of this chapter, transgender students experience significant bullying and harassment based on their gender identity. Other subpopulations within the LGBTQ community report similarly alarming experiences. Although not discussed in great detail here, these realities present legal implications under state and federal law. Relatedly, there is a body of case law concerning students asserting their rights to wear pro-LGBTQ or anti-LGBTQ clothing, under the First Amendment. These issues, as well as others, including the concerns raised in this chapter, are important for educators, researchers, and policymakers to have on their radar. Knowledge of the legal landscape will assist school officials in creating policies that do not discriminate against transgender students and ensure that they are treated with dignity.
(1.) Dominic Holden, The Education Department Officially Says It Will Reject Transgender Student Bathroom Complaints, BuzzFeed News (Feb. 12, 2018, 11:17 AM), https://www.buzzfeed.com/dominicholden/edu-dept-trans-student-bathrooms?utm_term=.dfYJeaJo2#.jl5mjzm0D.
(2.) See U.S. Dep’t of Justice & U.S. Dep’t of Educ., Dear Colleague Letter on Transgender Students (May 13, 2016), http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201605-title-ix-transgender.pdf.
(3.) Moriah Balingit, Education Department No Longer Investigating Transgender Bathroom Complaints, Wash. Post (Feb. 12, 2018), https://www.washingtonpost.com/news/education/wp/2018/02/12/education-department-will-no-longer-investigate-transgender-bathroom-complaints/?noredirect=on&utm_term=.ae3f1e6e7270.
(4.) Asaf Orr et al., Schools in Transition: A Guide for Supporting Transgender Students in K–12 Schools, Hum. Rts. Campaign, https://assets2.hrc.org/files/assets/resources/Schools-In-Transition.pdf?_ga=2.269131252.445369444.1525364253–1197078221.1522880473 (last visited May 15, 2018).
(5.) Shannon D. Snapp et al., A Right to Disclose: LGBTQ Youth Representation in Data, Science, and Policy, in 50 Equity and Justice in Developmental Science: Theoretical and Methodological Issues 2, 135 (Horn et al. eds., 2016).
(6.) Fernando Stein, AAP Statement on Protecting Transgender Youth, Am. Acad. Pediatrics (Feb. 23, 2017), https://www.aap.org/en-us/about-the-aap/aap-press-room/pages/AAP-Statement-on-Protecting-Transgender-Youth.aspx.
(7.) GenIUSS Group, Best Practices for Asking Questions to Identify Transgender and Other Gender Minority Respondents on Population-Based Surveys, Williams Inst. (Sept 2014), https://williamsinstitute.law.ucla.edu/wp-content/uploads/geniuss-report-sep-2014.pdf.
(8.) Dane Cty. Youth Comm’n, 2015 Dane County Youth Assessment Overview Report (Sept. 2015), https://danecountyhumanservices.org/yth/dox/asmt_survey/2015/2015_exec_sum.pdf.
(9.) Joseph G. Kosciw et al., The 2015 National School Climate Survey, glsen (2016), https://www.glsen.org/sites/default/files/2015%20National%20GLSEN%202015%20National%20School%20Climate%20Survey%20%28NSCS%29%20-%20Full%20Report_0.pdf.
(10.) Shannon D. Snapp & Stephen T. Russell, Discipline Disparities for LGBTQ Youth: Challenges That Perpetuate Disparities and Strategies to Overcome Them, in Inequality in School Discipline 207 (Skiba et al. eds., 2016).
(11.) Sandy E. James et al., The Report of the 2015 U.S. Transgender Survey, Nat’l Ctr. for Transgender Equality (Dec. 2016), https://transequality.org/sites/default/files/docs/usts/USTS-Full-Report-Dec17.pdf.
(12.) Joseph G. Kosciw et al., The Effect of Negative School Climate on Academic Outcomes for LGBT Youth and the Role of In-School Supports, 12 J. Sch. Violence 4 (2013).
(13.) Robert W. S. Coulter et al., The Effects of Gender- and Sexuality-Based Harassment on Lesbian, Gay, Bisexual, and Transgender Substance Use Disparities, 62 J. Adolescent Health 688 (2018).
(14.) Kirsten Clements-Nolle, Rani Marx, & Mitchell Katz, Attempted Suicide Among Transgender Persons: The Influence of Gender-Based Discrimination and Victimization, 51 J. Homosexuality 53 (2006).
(15.) Michael P. O’Malley & Colleen A. Capper, A Measure of the Quality of Educational Leadership Programs for Social Justice, 51 Educ. Admin. Q. 290 (2015).
(16.) Brief for National Education Association et al. as Amici Curiae in support of Respondent, Gloucester County School Board v. G.G., 137 S. Ct. 1239, 14 (2017) (No. 16-273); Lily Durwood et al., Mental Health and Self-Worth in Socially Transitioned Transgender Youth, 56 J. Am. Acad. Child & Adolescent Psychiatry 116, 116 (2017).
(17.) Stephen T. Russell et al., Chosen Name Use Is Linked to Reduced Depressive Symptoms, Suicidal Ideation, and Suicidal Behavior Among Transgender Youth, J. Adolescent Health (forthcoming 2018), https://www.jahonline.org/article/S1054-139X(18)30085-5/abstract.
(18.) Emily A. Greytak et al., Putting the “T” in “Resource”: The Benefits of LGBT-Related School Resources for Transgender Youth, 10 J. LGBT Youth 45 (2013).
(19.) Adrienne B. Dessel et al., The Importance of Teacher Support: Differential Impacts by Gender and Sexuality, 56 J. Adolescence 136 (2017); E. C. M. Mason, Sarah I. Springer, & Ashley Pugliese, Staff Development as a School Climate Intervention to Support Transgender and Gender Nonconforming Students: An Integrated Research Partnership Model for School Counselors and Counselor Educators, 11 J. LGBT Issues Counseling 301 (2017).
(20.) Dylan Vade, Expanding Gender and Expanding the Law: Toward a Social and Legal Conceptualization of Gender That Is More Inclusive of Transgender People, 11 Mich. J. Gender & L. 253 (2004).
(21.) Krista D. Brown, The Transgender Student-Athlete: Is There a Fourteenth Amendment Right to Participate on the Gender-Specific Team of Your Choice, 25 Marq. Sports L. Rev. 311 (2014).
(22.) Laurel Grbach, Transgender Student Dress: Free Speech and Protected Expression in Public Schools, 22 Temp. Pol. & Civ. Rts. L. Rev. 526 (2012); Deanna J. Glickman, Fashioning Children: Gender Restrictive Dress Codes as an Entry Point for the Trans School to Prison Pipeline, 24 Am. U. J. Gender, Soc. Pol’y & L. 263 (2015).
(23.) Dara E. Purvis, Transgender Children, Teaching Early Acceptance, and the Heckler’s Veto, in 72 Studies in Law, Politics, and Society 219 (Sarat ed., 2017).
(24.) Adele P. Kimmel, Title IX: An Imperfect but Vital Tool to Stop Bullying of LGBT Students, 125 Yale L.J. 2006 (2016).
(25.) Romer v. Evans, 517 U.S. 620, 631 (1996).
(26.) See Suzanne E. Eckes & Martha M. McCarthy, GLBT Teachers: The Evolving Legal Protections, 45 Am. Educ. Res. J. 530 (2008).
(27.) Laurence H. Tribe, American Constitutional Law 887 (1978).
(28.) 539 U.S. 558 (2003).
(29.) 135 S. Ct. 2584 (2015).
(30.) See Jillian T. Weiss, Gender Autonomy, Transgender Identity and Substantive Due Process: Finding a Rational Basis for Lawrence v. Texas, 5 Touro J. Race, Gender & Ethnicity 1 (2010).
(31.) Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969).
(32.) Id. at 508.
(33.) However, school officials must protect those whose controversial speech is under threat from hecklers. This is known as the “heckler’s veto” doctrine. See Street v. New York, 394 U.S. 576, 592 (1969) (“It is firmly settled that under our Constitution the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of the hearers.”).
(34.) See, e.g., Doe ex rel. Doe v. Yunits, No. 001060A, 2000 WL 33162199 (Mass. Oct. 11, 2000) (finding that transgender student’s attire did not cause a disruption).
(35.) See, e.g., Harper v. Poway Unified Sch. Dist., 445 F.3d 1166 (9th Cir. 2006) (noting that school officials can curtail speech that interferes with the rights of other students).
(36.) 20 U.S.C. § 1681(a).
(37.) Evancho v. Pine-Richland Sch. Dist., 237 F. Supp. 3d 267, 295 (W.D. Pa. 2017).
(38.) Id. at 289.
(39.) USDOE’s Office of Civil Rights developed an accompanying guidance on Questions and Answers on Title IX and Sexual Violence in April 2014.
(40.) See supra note 2.
(41.) See U.S. Dep’t of Justice & U.S. Dep’t of Educ., Dear Colleague Letter Withdrawing Previous Guidance on Transgender Students (Feb. 22, 2017), https://www2.ed.gov/about/offices/list/ocr/lgbt.html.
(42.) 20 U.S.C. § 1232g; 34 C.F.R. §§ 99.00 et seq.
(43.) 34 C.F.R. § 99.31(a).
(44.) 34 C.F.R. § 99.7(a)(2)(ii).
(46.) Letter from Eric T. Schneiderman, N.Y. Attorney Gen. & MaryEllen Elia, N.Y. State Educ. Dep’t (Feb. 28, 2018), http://www.nysed.gov/common/nysed/files/nysed-oag-joint-guidance-letter-2-28-18.pdf.
(48.) Evancho v. Pine-Richland Sch. Dist., 237 F. Supp. 3d 267, 274 (W.D. Pa. 2017).
(49.) Kristi Bowman, A Counterfactual History of Transgender Students’ Rights, 20 JCL Online 4 (2018).
(50.) Mathis v. Fountain-Fort Carson Sch. Dist. 8, Charge No. P20130034X (Colo. Div. Civ. Rts. June 17, 2013).
(51.) Maria Lewis & Suzanne Eckes (under review), Storytelling Leadership and the Law: Using Amicus Briefs to Understand the Impact of School District Policies and Practices Related to Transgender Student Inclusion, 1–49.
(53.) Suzanne E. Eckes, The Restroom and Locker Room Wars: Where to Pee or Not to Pee, 14 J. LGBT Youth 247 (2017).
(54.) G.G. ex rel. Grimm v. Gloucester Cty. Sch. Bd., 822 F.3d 709 (4th Cir. 2016), vacated, 137 S. Ct. 1239 (Mar. 6, 2017).
(55.) Id. at 732.
(56.) Id. at 733 (the Title IX and preliminary injunction challenge only were before the court).
(57.) G.G. ex rel. Grimm v. Gloucester Cty. Sch. Bd., 132 F. Supp. 3d 736 (E.D. Va. 2015), vacated in part, 822 F.3d 709 (Apr. 19, 2016).
(58.) Id. at 744.
(59.) G.G., 822 F.3d at 720.
(60.) Shortly after the Fourth Circuit’s decision, the U.S. Departments of Education and Justice issued a joint Dear Colleague letter. The Guidance stated that transgender students should be able to use sex-segregated facilities that were consistent with their gender identity. See Dear Colleague Letter Withdrawing Previous Guidance on Transgender Students, supra note 2.
(61.) Grimm v. Gloucester Cnty. Sch. Bd., No. 4:15cv54, 2018 WL 2328233 (E.D. Va. May 22, 2018).
(62.) See Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034 (7th Cir. 2017).
(63.) Id. at 1039.
(64.) See Adams v. Sch. Bd., 2018 U.S. Dist. LEXIS 125127 (M.D. Fla. 2018) (granting transgender student’s motion for preliminary injunction on the Fourteenth Amendment and Title IX claims); J.A.W. v. Evansville Vanderburgh Sch. Corp., 2018 U.S. Dist. LEXIS 30532 (S.D. Ind. 2018) (granting transgender student’s motion for preliminary injunction to allow him to use the male restroom); Evancho v. Pine-Richland Sch. Dist., 237 F. Supp. 3d 267 (W.D. Pa. 2017) (granting transgender students’ motion for preliminary injunction in an equal protection case involving restroom access); A.H. ex rel. Handling v. Minersville Area Sch. Dist., 290 F. Supp. 3d 321 (M.D. Pa. 2017) (denying school district’s motion to dismiss because transgender student demonstrated that there was a reasonable likelihood that Title IX prevented gender identity discrimination); M.A.B. v. Bd. of Educ., 286 F. Supp. 3d 704 (D. Md. 2018) (allowing transgender student’s lawsuit to proceed against the district); Bd. of Educ. v. U.S. Dep’t of Educ., 208 F. Supp. 3d 850 (S.D. Ohio 2016) (granting transgender student’s motion for preliminary injunction; she was likely to succeed on Title IX and equal protection claim); see also Dodds v. U.S. Dep’t of Educ., 845 F.3d 217 (6th Cir. 2016) (denying school district’s subsequent motion to stay the decision).
(65.) See Doe v. Reg’l Sch. Unit 26, 86 A.3d 600 (Me. 2014) (finding Maine’s Human Rights Act was violated when a transgender female student was not permitted to use the restroom); see also R.M.A. v. Blue Springs R-IV Sch. Dist., 2018 Mo. LEXIS 5 (Mo. Jan. 23, 2018) (vacating state appellate court’s decision to dismiss transgender student’s state law claim).
(66.) Cisgender is defined as someone whose gender corresponds with their sex at birth.
(67.) Doe v. Boyertown Area Sch. Dist., 276 F. Supp. 3d 324 (E.D. Pa. 2017).
(68.) Doe v. Boyertown Area Sch. Dist., No. 17–3113, 2018 U.S. App. LEXIS 16323 (3d Cir. June 18, 2018).
(69.) Students & Parents for Privacy v. U.S. Dep’t of Educ., 2017 U.S. Dist. LEXIS 213091 (N.D. Ill. 2017).
(70.) Parents for Privacy v. Dallas Sch. Dist. No. 2, 2018 U.S. Dist. LEXIS 123567 (D. Or. 2018).
(71.) See Evancho v. Pine-Richland Sch. Dist., 237 F. Supp. 3d 267, 293 (W.D. Pa. 2017).
(72.) Grimm, 2018 U.S. Dist. LEXIS at *41.
(73.) U.S. Dep’t of Educ. et al., Examples of Policies and Emerging Practices for Supporting Transgender Students (May 2016), https://www2.ed.gov/about/offices/list/oese/oshs/emergingpractices.pdf.
(74.) Model District Policy on Transgender and Gender Non-Conforming Students, glsen (Feb. 2016), https://www.glsen.org/sites/default/files/Trans%20Model%20Policy.pdf.
(75.) D.C. Pub. Schs. Office of Youth Engagement, Transgender and Gender-Nonconforming Policy Guidance (June 2015), https://dcps.dc.gov/sites/default/files/dc/sites/dcps/publication/attachments/DCPS%20Transgender%20Gender%20Non%20Conforming%20Policy%20Guidance.pdf.
(76.) 34 C.F.R. § 99.7(a)(2)(ii).
(77.) Voluntary Resolution Agreement, Central Piedmont Community College, OCR Complaint No. 11-14-2265 (Aug. 13, 2015), https://www2.ed.gov/about/offices/list/ocr/docs/investigations/more/11142265-b.pdf.
(78.) N.Y. State Educ. Dep’t, Guidance to School Districts for Creating a Safe and Supportive School Environment for Transgender and Gender Nonconforming Students (July 2015), http://www.p12.nysed.gov/dignityact/documents/Transg_GNCGuidanceFINAL.pdf.
(79.) 34 C.F.R. § 106.41.
(82.) Subchapter J, Sect. 360: Non-Discrimination Policy, U. Interscholastic League, https://www.uiltexas.org/policy/constitution/general/nondiscrimination (last visited May 15, 2018).
(83.) Transgender Policy 3, Ohio High Sch. Athletic Ass’n, http://www.ohsaa.org/Portals/0/Eligibility/OtherEligibiltyDocs/TransgenderPolicy.pdf (last visited May 15, 2018).
(85.) Guidelines for Gender Identity Participation, Cal. Interscholastic Fed’n (2017), http://www.cifstate.org/governance/constitution/Guidelines_for_Gender_Identity_Participation.pdf.
(86.) “All 50”: The Transgender-Inclusive High School Sports and Activities Policy and Education Project, LGBT Sports Found., http://www.nclrights.org/wp-content/uploads/2016/05/All-50-Model-High-School-Policy.pdf (last visited May 15, 2018).
(87.) Li Zhou, The Sexism of School Dress Codes, The Atlantic (Oct. 20, 2015), https://www.theatlantic.com/education/archive/2015/10/school-dress-codes-are-problematic/410962.
(90.) Lee Moran, L, Cross-dressing Texas Teen Banned from Wearing Ladies’ Clothing and Wig to High School Prom, N.Y. Daily News (Feb. 22, 2013), http://www.nydailynews.com/news/national/prom-dress-code-forbids-boy-wear-dress-article-1.1270869.
(91.) Gabrielle Sorto, Student Protests Growing over Gender-Equal Dress Codes, cnn (Feb. 25, 2016), https://www.cnn.com/2016/02/25/living/dress-code-protests-irpt/index.html.
(92.) Associated Press, Transgender Student’s Tuxedo Photo in Yearbook Banned, CBS News (Nov. 15, 2013), http://www.cbsnews.com/news/transgender-students-tuxedo-photo-in-yearbook-banned/; Bianca Phillips, Arkansas Girl Allowed to Wear Tuxedo in Yearbook Picture, Memphis Flyer (Nov. 17, 2010), http://www.memphisflyer.com/MemphisGaydar/archives/2010/11/17/arkansas-girl-allowed-to-wear-tuxedo-in-yearbook-picture; Jane Yanamoto, Prom Dress Code Highlights Harassment of Gay Students at San Bernardino County High School: aclu, nbc (Mar. 19, 2013), http://www.nbclosangeles.com/news/local/ACLU-Alleges-Gay-Students-Harassed-Sultana-198872001.html; Suzanne Eckes, Todd DeMitchell, & Richard Fossey, Breaking Social Norms at Prom, Principal Leadership 10 (Apr. 2015).
(93.) Principal Accused of Telling Transgender Student Yearbook Pictures Will Be Pulled for Violating School’s Dress Code, CBS Philly, http://philadelphia.cbslocal.com/video/3839025-principal-accused-of-telling-transgender-student-yearbook-pictures-will-be-pulled-for-violating-schools-dress-code/ (last visited May 15, 2018).
(94.) Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681.
 U.S. Const. amend. I.
(96.) U.S. Const. amend. XIV, § 1.
(97.) About the California Student Safety and Violence Prevention Act of 2000, Ca. Safe Schs. Coalition (Oct. 20, 2016), http://www.casafeschools.org/resourceguide/AB537.html.
(98.) Doe ex rel. Doe v. Yunits, No. 001060A, 2000 WL 33162199 (Mass. Oct. 11, 2000).
(99.) Id. at *3.
(100.) See Doe v. Bell, 754 N.Y.S.2d 846 (N.Y. Sup. Ct. 2003).
(102.) Logan v. Gary Cmty. Sch. Corp., No. 2:07-CV-431 JVB, 2008 WL 4411518 (N.D. Ind. Sept. 25, 2008); see also McMillen v. Itawamba Cty. Sch. Dist., 702 F. Supp. 2d 699 (N.D. Miss. 2010) (finding that school officials infringed upon the student’s First Amendment rights when they did not permit her to wear a tuxedo to prom); Sturgis v. Copiah Cty. Sch. Dist., No. 3:10-CV-455-DPJ-FKB, 2011 WL 4351355 (S.D. Miss. Sept. 15, 2011) (denying the schools district’s motion to dismiss the Title IX and equal protection claims in case involving a female student who wanted to wear a tuxedo for her senior picture).
(103.) Suzanne Eckes, Todd DeMitchell, & Richard Fossey, Breaking Social Norms at Prom, Principal Leadership 10 (Apr. 2015).
(104.) Zoe Greenberg, When a Student Says, “I’m Not a Boy or a Girl,” N.Y. Times (Oct. 24, 2017), https://www.nytimes.com/2017/10/24/well/family/transgender-gender-nonbinary-students.html.
(105.) Model District Policy on Transgender and Gender Non-Conforming Students, supra note 73, at 7.
(106.) Kimmie Fink, The Importance of Inclusive School Dress Codes, Hum. Rts. Campaign (Jan. 30, 2017), https://www.hrc.org/blog/the-importance-of-inclusive-school-dress-codes.
(107.) Betsy Hammond, Portland Schools Ready to End Dress Code Called Vague, Judgmental, Anti-Girl, Oregonian (June 24, 2016), http://www.oregonlive.com/education/index.ssf/2016/06/portland_schools_ready_to_end.html.