Schools in the Middle - Mixed Messages on Transgender Students

by Malina Piontek, Attorney, LLC

As if a school principal’s job isn’t already complicated enough, proposed legislation in Wisconsin placing gender restrictions on the use of school bathrooms and locker rooms, along with differing interpretations of Title IX by federal agencies and courts may further put schools in the cross hairs of competing legal theories.

There are currently no state or federal laws that expressly prohibit discrimination on the basis of a student’s transgender status.[1] In recent years, however, federal agencies have increasingly extended the scope of civil rights laws, particularly Title IX, to transgender students. In contrast to the federal agencies’ positions, at least one federal district court has ruled earlier this year that a Pennsylvania university did not violate Title IX when it prohibited a transgender female student from using sex-segregated locker rooms and restrooms that were designated for men. Yet another federal district court just weeks ago dismissed a Virginia transgender male student’s Title IX claim filed because the school excluded him from using the boys’ bathroom.

To further complicate things, earlier this month, Republican lawmakers in Wisconsin began circulating a bill that would require school boards to designate school restrooms and locker or shower rooms accessible by multiple students for the exclusive use of either “males” or “females.”

This article will provide an update on recent activity relating to transgender students in the schools in an effort to explain the mixed messages that are putting school principals in the middle of a very complicated legal issue.

OCR and Its Influence on Schools’ Application of Title IX to Transgender Students

The Department of Education’s Office of Civil Rights (OCR) enforces civil rights laws, such as Title IX, in public schools. OCR is very active right now and will likely be for the foreseeable future. Why? OCR is committed to aggressively fulfilling its mission, which is to “ensure equal access to education and to promote educational excellence throughout the nation through vigorous enforcement of civil rights.” In order to fulfill its mission, OCR requested a budget increase for fiscal year 2016 in excess of $30 million, and is requesting to increase its staff by 200. Of the 200 requested new positions, 192 are additional complaint investigators.

Given its activity in the past couple of years, it is likely that OCR will continue to target its resources on transgender students’ claims of discrimination in public schools. Although not specifically addressed in the language of Title IX, OCR and the U.S. Department of Justice (DOJ) jointly concluded in July, 2013, that discrimination against students because of their transgender status violates Title IX.  The specific case alleged that the Arcadia, California, school district prohibited a transgender male student from using restrooms and locker rooms consistent with his male gender identity in violation of Title IX.  The agencies agreed with the student saying:   

Under the Title IX regulations, a school district may not treat individuals differently on the basis of sex with regard to any aspect of services, benefits, or opportunities it provides. . . . All students, including transgender students and students who do not conform to sex stereotypes, are protected from sex-based discrimination under Title IX.

Thereafter, in October, 2014, OCR issued findings in another complaint filed by a transgender student against the Downey, California, school district.  In this case, a transgender female complained that school officials failed to respond to students verbally harassing her and that teachers disciplined her for wearing makeup.  OCR advised that harassment of students for failing to conform to stereotypical notions of masculinity or femininity constitutes sex discrimination under Title IX.

In January, 2015, OCR gave more detailed guidance on transgender students’ use of bathrooms, stating, “When a school elects to separate or treat students differently on the basis of sex (such as with sex-segregated restrooms) a school generally must treat transgender students consistent with their gender identity.” Letter from James A. Ferg-Cadima, Acting Deputy Assistant Secretary for Policy, OCR to Emily T. Prince, Esq. (January 7, 2015).

Finally, in April, 2015, OCR issued a Resource Guide for Title IX Coordinators which states that Title IX protects students from all forms of sex discrimination, including discrimination based on gender identity or failure to conform to stereotypical notions of masculinity or femininity.  

Given OCR’s vigorous enforcement efforts of late, it is clear that if a transgender student files a complaint with OCR, it will apply its interpretation that discrimination based on transgender status constitutes sex discrimination under Title IX.

Inconsistent Views of Two Federal District Courts

At least two federal district courts have disagreed with OCR’s interpretation of the applicability of Title IX to transgender status. Just last month, in G.G. v. Gloucester County School Board, a federal district court in Virginia, which does not have jurisdiction over Wisconsin public schools, dismissed a transgender male student’s Title IX claim. The transgender male claimed that the school board’s policy that excluded him from using the boys’ restroom based on his gender identity amounts to sex discrimination in violation of Title IX. The court, however, concluded that the Title IX claim is precluded by Department of Education regulations which expressly allow schools to provide separate bathroom facilities based upon sex, so long as the bathrooms are comparable. 34 C.F.R. § 106.33

At least one other federal district court in Pennsylvania reached a similar conclusion in March, 2015. In Johnston v. University of Pittsburgh, a transgender male student who had medically transitioned to his male identity listed his gender as female on his university application. He used male restrooms and locker rooms for two years until a school official informed him that he could no longer use male facilities. Although Johnston agreed to use unisex facilities, he began reusing male facilities. He was ultimately expelled for continuing to use the male-only facilities. He sued under Title IX alleging discrimination and retaliation on the basis of his transgender status and failure to conform to gender stereotypes.

The Western District Court of Pennsylvania disagreed, concluding that the University’s policy requiring students to use sex-segregated bathroom and locker room facilities based on the students’ birth sex rather than their gender identity does not violate Title IX’s prohibition of sex discrimination.

Although the decisions of these federal district courts are not binding in Wisconsin, they point out the mixed messages between OCR and at least these two courts on the application of Title IX to transgender students. A similar lawsuit has been filed in federal district court in Michigan which could yield different results. Moreover, OCR has filed statements of interest in the Michigan and Virginia cases urging the courts to concur with its interpretation of Title IX. Finally, the ACLU filed an appeal of the Virginia federal court’s decision on October 21, 2015.

Proposed Legislation in Wisconsin

In early October, 2015, legislators in the state assembly began circulating proposed legislation that would require school boards to designate each pupil restroom and changing room for the exclusive use of pupils of only one sex. The bill defines “sex” as the physical condition of being male or female, as determined by an individual’s chromosomes and identified at birth by that individual’s anatomy. The bill prohibits a member of the female sex from using a changing room that has been designated as the male changing room and prohibits a member of the male sex from using a changing room that has been designated as the female changing room. The bill includes a complaint procedure for parents, which requires a school to conduct an investigation.

Keep in mind that this is only proposed legislation, and does not have the effect of law. Therefore, there is no legal requirement to make changes at the school level to conform to the provisions of this proposal.

Conclusion

The rights of transgender students in the schools are in a state of flux. The answer to a legal question regarding transgender students’ rights may largely depend on where the question is venued. OCR is taking a firm position that Title IX covers transgender status. The few federal courts that have addressed the issue have taken a contrary view. Some Wisconsin legislators want to address the restroom/changing facilities issue head on by enacting a specific law. Until there are more solid answers from the courts, principals are advised to work with district legal counsel on issues relating to transgender students in the schools.

This article was written by Attorney Malina Piontek, AWSA’s Level I Legal Services Provider. You may direct your Level I call-in questions to Malina at 608-497-3037. You may email her at [email protected]. The views expressed herein are exclusively those of Ms. Piontek. This article was designed to provide you with general authoritative information and with commentary as a service to AWSA members. It should not be relied upon as legal advice. You are encouraged to contact your district legal counsel should you require legal advice regarding this topic.

[1] For purposes of this article, transgender male means an individual whose birth certificate designates the female gender; and transgender female means an individual whose birth certificate designates the male gender.