Milwaukee | Madison

411 East Wisconsin Avenue | Suite 1000 | Milwaukee, WI 53202 | www.vonbriesen.com

When Bruce Becomes Caitlyn:

Transgender Issues in Schools

Part II

WASBO Fall Conference

October 7, 2016

Andy Phillips and Chrissy Hamiel

2

The Law – My How Far We’ve Come!

• March 23, 2016 – North Carolina passes nation’s “bathroom bill” barring

transgender people from bathrooms that do not match their birth gender

• April 19, 2016 – 4th Circuit Court of Appeals finds Title IX extends to

protect the rights of transgender students to use the bathroom that

corresponds with the student’s gender identity

• May 3, 2016 – EEOC releases Fact Sheet to Employers providing guidance

under Title VII regarding bathroom access rights for transgender

employees

• May 9, 2016 – Dueling lawsuits by NC and US DOJ over NC’s bathroom bill

• May 13, 2016 – Significant guidance from DOJ and DOE to schools across

the nation

• May 25, 2016 – Wisconsin joins Texas and 9 other states in lawsuit against

the federal government related to the DOJ’s and DOE’s guidance

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The Law – My How Far We’ve Come, con’t. • July 19, 2016 – Whitaker v. Kenosha Unified Sch. Dist. – Becomes Wisconsin’s test case

on transgender student use of restrooms

• August 3, 2016 – SCOTUS granted Sch. Bd.’s stay in G.G. – District does not have to allow

transgender student to use restroom of his choosing during appeal

• August 21, 2016 – Texas federal judge signed temporary injunction blocking the DOJ

and DOE’s pronouncement that requires public schools to let transgender students use

the bathrooms and locker rooms consistent with their chosen gender identity.

– The judge says the order applies nationwide. But does it?

– What is the implication of a federal judge in Texas issuing an injunction?

• August 29, 2016 – Virginia Sch. Bd. files a petition for review to the SCOTUS in the G.G.

matter

• September 19/20, 2016 – Whitaker v. KUSD - Court allows student to proceed on Title

IX and equal protection claims and issues injunction allowing student to use restroom

of gender in which student identifies.

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….My How Far We Have To Go

• How should school districts handle protection of transgender and non-transgender

students and their rights?

– Records

– Confidentiality

– Communications with parents/community

– Etiquette and proper manner to address students

– Physical education

– Restrooms/Locker rooms

– Sports and athletic activities

– Other school sponsored activities and events

– Student dress

– Bullying and harassment

– Special education considerations

5

As to Employees…… • Stems from a 1989 Supreme Court case, Price-Waterhouse v. Hopkins

– Court said “sex stereotyping” may be a form of discrimination that falls within the

category of sex discrimination under Title VII

• Two significant EEOC rulings – Mia Macy (2012) and Lusardi (2014)

– EEOC has said discrimination based on transgender status is sex discrimination in

violation of Title VII

– Denying equal access to common restrooms corresponding to employee’s gender

identity is sex discrimination

• 2014 DOJ Memorandum

– DOJ espouses that the best reading of Title VII’s prohibition on sex discrimination

is that it encompasses discrimination based on gender identity, including

transgender status

• The Seventh Circuit Court of Appeals has declined to adopt an expansive

reading of the term “sex” in Title VII cases

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Use of Restrooms/Locker Rooms

• Cruzan v. Special Sch. Dist. No. 1, 294 F.3d 981(8th Cir. 2002).

– District designated its staff bathrooms on the basis of perceived gender,

not sex.

– This led to a claim by a female that the District created a hostile

environment by allowing a transgendered female to use the women’s

restroom.

– The Eighth Circuit stated that the “MHRA neither requires nor prohibits

restroom designation according to self-image of gender or according to

biological sex.”

– Decision based on Minnesota law.

7

As to Students……

• DOE’s Office for Civil Rights has taken a clear position that

discrimination against students because of their gender identity or

transgender status violates Title IX

• November 2015 – DOE-OCR in Chicago issued scathing letter to

school district finding district discriminated against a transgender

student by failing to provide unfettered access to girls’ facilities

• In April, 4th Circuit in G.G. v. Gloucester County Sch. Bd., became

first federal appeals court in the nation to find that Title IX extends

to protect the rights of transgender students to use the bathroom

that corresponds with the student’s gender identity

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Treatment of Transgender Status

Under Title IX • Title IX

– Prohibits discrimination against students on the basis of sex.

• No person in the [U.S.] shall, on the basis of sex, be excluded from

participation in, be denied the benefits of, or be subject to

discrimination under any education program or activity receiving

Federal financial assistance.

• The fundamental question is whether Title IX protections extend to

transgender students; namely, does the phrase “on the basis of sex” apply to

transgender students.

• The Price-Waterhouse case is a Title VII case, but the Court’s holding that

“sex stereotyping” may form a basis for a discrimination claim has been the

basis on which several federal district courts have held that “sex

stereotyping” may be a form of discrimination under Title IX.

9

Student Nondiscrimination

• Wisconsin school districts are prohibited from discriminating against students

by Wis. Stat. § 118.13, which states that “no person may be denied admission

to any public school or be denied participation in, be denied the benefits of

or be discriminated against in any curricular, extra-curricular, pupil services,

recreational or other program of activity because of the person’s sex … [or]

sexual orientation … ”

• Transgender status is not specifically covered by this statute, and whether

Wisconsin courts will read “sex or sexual orientation” to include transgender

status is an open question.

10

Student Nondiscrimination

• The Department of Education’s Office for Civil Rights (“OCR”) has taken a

clear position that discrimination against students because of their gender

identity or transgender status violates Title IX.

– OCR’s position: “[a]ll 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.”

• “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.”

11

North Carolina Bathroom Bill

• First in the nation

• Requires public agencies and local school boards to allow people to use only

public bathrooms that correspond to their biological sex at birth

– A similar bathroom bill was passed and vetoed earlier this spring in South

Dakota.

– The people of Washington will vote on a bathrooms ballot initiative in

November.

• As of May 25, Wisconsin joined 10 other states, led by Texas, in suing the

federal government over the DOE’s and DOJ’s guidance. The state has

indicated that the guidance conflicts with both federal and state law in that

Wisconsin law does not prohibit discrimination based on gender identity.

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Wisconsin’s Own Bathroom Bill – 2015 AB 469 • Introduced in October 2015

• Would have required school boards to designate restrooms and locker rooms for the exclusive

use of either male or female students.

• Required a board to designate each pupil restroom/changing room located in a public school

building and accessible by multiple pupils as for the exclusive use of pupils of only one sex.

• Defined “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.

• Prohibited a member of the female sex from using a room that has been designated as the

male room and prohibits a member of the male sex from using a room that has been

designated as the female room.

• Did permit a board to provide those who identify themselves as transgender with access to

single-occupancy bathrooms or existing faculty and staff restrooms.

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Assembly Substitute Amendment 1, to AB 469

• Includes definition of a gender neutral restroom – two separate stalls with

floor to ceiling partitions and doors

• Exception is made for janitorial/maintenance personnel, teachers,

administrators, police officers, emergency medical services personnel

• Requires a board to provide reasonable accommodations to a pupil to use a

single−occupancy restroom or changing room or the regulated use of a faculty

restroom or changing room if the parent or guardian of the pupil submits a

written request to receive accommodations

• Allows a school board to provide gender−neutral restroom in a school in the

school district for use by pupils.

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Other States’ Legislation

• Similar bills in Kentucky, Florida, Minnesota, Nevada, and Texas.

• CONVERSELY:

– Jan. 1, 2014 – California was the first state to have a law mandating that

schools must respect students' preferences for what programs they

participate in and what facilities they use.

– California, Washington, Colorado, Connecticut, Massachusetts, New York

and the District of Columbia have adopted policies requiring schools to

permit transgender students to use bathrooms and locker rooms based on

the student’s gender identity.

• Eleven other states have general anti-discrimination policies on the books

that might also protect the rights of transgender students in schools

15

Nicole Maines Case – 2014

• Transgender student was awarded $75,000 by the Maine Supreme Judicial

Court in a discrimination lawsuit against a school district that forced her to

use a staff restroom rather than a facility reserved for pupils.

• Court ruled that the school district had violated the state’s Human Rights Act.

• Case marked the first time a state’s highest court ruled that a transgender

person has the right to use the restroom of the gender with which they

identify.

16

DOE-OCR – “Letter of Findings” – Palatine-

Schaumburg Twnshp. High Sch. Dist. 211 (2015) • DOE found a Chicago-area school district discriminated against a transgender

student by failing to provide her full access to girls' locker rooms.

– District must give unfettered access to transgender student

– The DOE gave the school 30 days to resolve the dispute, or risk forfeiting Title

IX funding.

• Resolution agreement Between DOE and District 211

– Provide the student with access to the girls' locker rooms

– Privacy curtains and alternative options

– Coordinate with hosts of off-campus, district-sponsored activities

– Engage a consultant, establish support team

• This case marked the first time that the OCR found a school in violation of civil

rights laws over transgender issues – in prior cases, settlements were reached.

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G.G. v. Gloucester County School Board • First federal appeals court to find that Title IX extends to protect transgender students

to use the bathroom that corresponds with the student’s gender identity

• Focus of the decision was interpretation of DOE’s regulations

• Public restrooms, locker rooms, and showers historically have been separate on the

basis of sex, and that individuals have a legitimate and important interest in bodily

privacy and safety of all individuals.

• HOWEVER – the Court stated that these safety concerns or privacy interests should be

addressed by the DOE or Congress, and not the Court.

• Court was required to afford deference to the DOE's interpretation.

• Court held that an individual's sex should be determined by reference to the student's

gender identity, i.e., consistent with DOE interpretation.

• On Tuesday, May 31, the Fourth Circuit declined en banc review (to rehear the case

before the full court)

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G.G. v. Gloucester County Sch. Bd., con’t.

• August 3, 2016 – SCOTUS granted Sch. Bd.’s stay in G.G. – District does not

have to allow transgender student to use restroom of his choosing during

appeal

• August 29, 2016 – Virginia Sch. Bd. files a petition for review to the SCOTUS in

the G.G. matter

• SCOTUS will likely announce this Fall whether it will grant review.

19

Johnston v. Univ. of Pittsburgh, (2015 WL

1497753 W.D. Pa. 03/31/2015)

• The University had a policy that required students to use sex-segregated

facilities based on birth sex.

• A transgender male student alleged the policy violated Title IX.

• The court determined that Title IX does not provide basis for claim, because

transgender is not a protected class under Title IX.

• The court concluded that Title IX permits schools to provide sex segregated

spaces in educational settings and base use on birth sex.

20

DOE and DOJ “Dear Colleague” Letter –

May 13, 2016 • Provides a variety of compliance guidelines to ensure equal treatment of

transgender students

• Guidelines:

– Honor student’s expressed gender identity

– Use names and pronouns consistent with expressed gender identity

– Prohibits medical documentation requirement

– Requires unfettered access to restrooms/locker rooms/changing facilities

– May provide individual user options for all students

– May continue to use sex-segregated athletic teams but allow equal

participation

– Equal application of all school policies

– Retain confidentiality in gender for student records purposes

– Limitations on disclosure to school personnel of gender status

21

The Texas Lawsuit

• Texas brought suit, joined by Alabama, Wisconsin, West Virginia, Tennessee,

Arizona's Department of Education, Maine Gov. Paul LePage, Oklahoma,

Louisiana, Utah and Georgia, challenging the DOE/DOJ’s Dear Colleague

Directives

– Letter violates various processes required by law for agency rule-making

and providing notice of action

– Letter equates to lawmaking by the DOJ and DOE which exceeds

congressional authorization

– Letter violates the 10th Amendment because States – not the federal

government – are charged with civil privacy protections

– Letter violates 14th Amendment equal protection because it treats

students unequally

– Guidance contradicts the Prison Rape Elimination Act

22

Texas Lawsuit, con’t.

• Federal district judge (in Texas) blocked the letter from being implemented

throughout the nation.

– “Although Defendants have characterized the Guidelines as interpretive,

post-guidance events and their actual legal effect prove that they are

‘compulsory in nature.’”

• The judge says the ruling prevents the DOE from implementing its guidance

that required school districts to allow transgender students to choose which

restroom and locker facilities to use.

• Thus far, the United States has not sought review of the decision.

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Whitaker v. Kenosha Unified Sch. Dist. • July 19, 2016 – Wisconsin’s test case on transgender student use of restrooms

• Allegations

– School refused to permit Whitaker access to restrooms consistent with his

gender identity

– School refused to permit Whitaker to be considered for junior prom king

– School refused to change name and gender in school records

– Stigmatizing treatment by volunteer school pianist in telling Whitaker “I’m

praying for you.”

– Branding transgender students with bright green wristband to better track

whereabouts.

– School required separate, single-occupancy bedrooms at summer orchestra

camp

– Failure to follow DOJ and DOE guidance and the G.G. decision of the Fourth

Circuit

24

Whitaker v. KUSD, con’t.

• Whitaker alleges

– Violation of Title IX

– Deprivation of equal protection under the 14th Amendment

• On Monday, September 19, 2016 – Court denied the District’s motion to

dismiss and is allowing the student proceed on his claims of discrimination in

violation of Title IX and deprivation of equal protection.

– The student alleged sufficient facts to sustain to sustain a discrimination

claim based on his transgender status and/or based on gender

stereotyping.

– As to the equal protection claim, the student alleged sufficient facts to

indicate that he was discriminated against relative to other males,

because he alleged he was not allowed to use the facilities that the

District allows other males to use.

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Whitaker v. KUSD, con’t.

• On Tuesday, September 20, 2016 – Court granted the student’s request for an

injunction which:

– Prohibits the District from requiring the student to use the restroom

associated with his biological sex

– Requires the District to allow the student to use the restroom of the

gender in which he identifies

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Milwaukee | Madison

411 East Wisconsin Avenue | Suite 1000 | Milwaukee, WI 53202 | www.vonbriesen.com

The Legal Lesson Was Great,

But What Do I Do In My

District?

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Practical Advice and Considerations

• Develop and/or revise policies?

– Do nothing?

– Create a new, transgender

specific policy?

– Revise current student non-

discrimination policy?

– Develop internal processes?

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• Considerations

– Records

– Confidentiality

– Communications with parents/community

– Student/parent relationships

– Etiquette and proper manner to address

students

– Physical Education

– Restrooms/Locker rooms

– Sports and athletic activities

– Other school sponsored activities and

events

– Student Dress

– Bullying and harassment

– Special Education considerations

Transition Plans

• Are they necessary?

• Transition may look very different for each student and not all students

desire the same outcome.

• Transitioning is a private matter; students may or may not want parental

participation in the process

• Note that transition plans will vary with the age of the student

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Process

• Consider how your district will respond.

– Meeting with student and/or parents/guardians

– Meeting of administration and staff to develop a transition plan

– Analysis of existing facilities

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Records

• Day-to-day documents and assignments

– District should use and reinforce the use of a student’s chosen name.

– Be mindful of substitute teachers or outside organizations should be

apprised of requested name usage

– ID cards, posted lists, library cards, lunch cards, etc. should utilize the

student’s requested name

• Official Records

– District must ensure all data on individuals is accurate, complete, and

current. Official records should reflect the student's legal name and sex

(as they appear on a birth record or other official document) and should

not change official records unless a student can demonstrate by court

order that the name has been legally changed.

31

Confidentiality

• Maintain confidentiality as you would with any other student

• Special considerations:

– How to refer to the student when communicating with the student’s

parents, both in writing and verbally.

– How to refer to the student when communicating with the student’s

siblings.

– What information to share with the student’s teachers and other staff

members on campus.

– How to address questions from peers (if student’s transgender status is

not private).

• Note that although FERPA does give school personnel discretion to discuss

student information among themselves where there is a “legitimate

educational purpose,”27 sharing a student’s transgender identity will rarely

meet that requirement.

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Communications with Parents/Community

• The school should support the student’s need for privacy to the best of its ability

• The school, student and family must strike a delicate balance of providing education

about gender diversity in general while still honoring the student’s right to and need

for privacy.

• Without speaking about a specific student, educators, administrators and other school

staff can be transparent about whatever processes the district has put into place,

whether it be a policy or a case-by-case assessment of student needs.

• Districts could consider the designation of a “point person” to respond to inquiries and

concerns.

• As to the media, a district can elect not to respond to media inquiries.

33

Communications, con’t.

• Considerations

– Communications with the community

– Training for school staff

– Parent information night

– Class meetings with parents

34

Student/Parent Relationship

• Schools can play a critical role in alleviating the psychological distress caused

by family rejection.

• The school environment may be the only place a transgender student feels

safe enough to be themselves.

• A transgender student may seek out an administrator or educator for support.

• The educator or administrator should consider asking whether the student’s

family is accepting in order to avoid inadvertently putting the student at risk

of greater harm by discussing the matter with the student’s family.

– Based on that information, the school and student should determine how

to proceed through the collaborative process of figuring out how the

school can support the student and balance the student’s need to be

affirmed

35

Etiquette/Proper Manner to Address Students

• Use of a chosen name or pronoun

– School districts should use (and reinforce the use) of the name and

pronouns appropriate to the student’s new gender. Continued misuse,

particularly if it is intentional, may lead to data privacy issues or a claim

of disparate treatment or hostile environment discrimination.

• Consider: Would a school district honor the request of a student

named “Matthew” that he be called “Matt”? How about an

“Elizabeth” that wants to be called “Liz.”

36

Physical Education

• Transgender students frequently cite the lack of locker room access as a key

factor in their inability to fully participate in physical education courses,

which can create a barrier to meeting graduation requirements.

• Questions to consider:

– Should a transgender student be permitted to participate in physical

education classes in a manner consistent with the gender identity that

the student regularly asserts at school and in other social environments?

– Should a transgender student be permitted to “dress out” for class in the

locker room of the gender in which the student identifies?

37

Etiquette • What do I call you?

– Transgender and gender nonconforming youth use a number of words to

describe their lives and gendered experiences.

– Terminology and language describing transgender individuals can differ based

on region, language, race or ethnicity, age, culture, and many other factors.

– Generally speaking, school staff and educators should inquire which terms

students may prefer and avoid terms that make these students

uncomfortable; a good general guideline is to employ those terms which the

students use to describe themselves.

– Note that “transgender” is an adjective, not a noun so it is more appropriate

to say “transgender person” instead of “transgendered”.

• What pronoun do I use?

– Pronouns for the identified gender.

38

Etiquette • What should I require as proof that the student is not just kidding around?

– Accept the student’s assertion of his/her gender identity and not require

particular substantiating evidence.

– If district personnel have a credible basis for believing that a student’s gender-

related identity is being asserted for an improper purpose, this basis should be

documented and a written response should be provided to the student, and if

appropriate, his/her parents or guardians.

– May be prudent to ask the student if you can discuss with parent/guardian and

seek conversation with parent/guardian to ensure protection and accommodation

of student’s gender identity and practical issues (e.g., bathroom and locker room

usage, student’s preferred name and any name change, student’s needs during

transition to identified gender).

• What if I personally have a problem with this?

– Just like any issue you personally disagree (e.g., religion, sports, politics), we are

all professionals and expected to give others the upmost respect and courtesy.

39

Restrooms/Locker Rooms

• District-wide policy or address on case-by-case basis

• Retro-fit facilities to provide individual privacy

40

Athletic Activities

• School sports

– Follow WIAA policy with respect to participation

– Consider locker room use within own district

– Consider locker room arrangements at other schools

41

WIAA Policy

• Addresses “bona fide transgender students”

• School is responsible for determining student eligibility to participate

– School’s policy should provide that the student and parents/guardian

notify the school in writing that the student is transgender and list the

WIAA sports the students would like to participate

• Gives procedures for making decisions regarding the participation and

eligibility of transgender athletes in WIAA-sponsored athletics

42

WIAA Policy, con’t.

• The following criteria should be used to determine which gender the student

will participate on the school’s teams:

– Current school registration information

– Written statement from student and parent/guardian affirming the

consistent gender identity and expression to which the student self-relates

– Documentation affirming the actions, attitudes, and dress which

demonstrate the student's consistent gender identification and expression

– Written verification from an appropriate healthcare professional (physician,

psychologist) of the student's consistent gender identity and expression; and

– Medical documentation (hormonal therapy, sexual re-assignment surgery,

counseling, etc.)

43

WIAA Policy, con’t.

• Medical documentation (hormonal therapy, sexual re-assignment surgery,

counseling, etc.)

– A FTM student who has started hormone therapy is only eligible for male

teams

– A FTM student who has not started hormone therapy my participate on

female teams if desired

– A MTF student must have one calendar year of medically documented

testosterone suppression therapy to be eligible to participate on a female

team

– A MTF student who has not started testosterone suppression therapy may

participate on male teams if desire

44

Other School Activities

• Overnight field trips

• Homecoming court and prom

• Yearbook photographs

• Theatre

45

Student Dress

• Student Dress Codes

– Enforce as written

Example: Within the constraints of the District’s dress code policy and dress

codes adopted by the school, students may dress consistently in accordance with

their full-time gender identity. School personnel shall not enforce a dress code

more strictly against transgender and gender nonconforming students than other

students.

46

Bullying/Harassment

• Include transgender students or students who do not conform to gender role

stereotypes as a class protected by the district’s bullying and harassment

policies.

• Complaints alleging discrimination, harassment or bullying based on a

person’s actual or perceived transgender status or gender nonconformity

should be handled in the same manner as other discrimination, harassment,

and bullying complaints.

• Ensure that any incident or complaint of discrimination, harassment, or

bullying is given prompt attention

• Take appropriate corrective and/or disciplinary action.

47

Special Education Considerations

• The Wisconsin Youth Risk Behavior Survey show that LGBTQ youth have higher

rates of anxiety, depression, suicide attempts, and other mental health

disparities.

– LGBTQ youth also report feeling less connected to school, including not

having trusted people they can talk to while there.

• Be aware that student transitions can have underlying health concerns that

need to be considered.

• School counselors, mental health staff, special education personnel should be

keenly aware of the need for services for this specific population of students.

48

Best Advice?

• Develop or revise policies?

• Revise current non-discrimination policy?

• Do what is best for the student?

• Comply with OCR/DOJ?

• Develop internal processes?

• Wait-and-see and do nothing?

• The fool-proof, “no-way-your-district-will-get-sued” solution?

49

Questions

50

Milwaukee | Madison

411 East Wisconsin Avenue | Suite 1000 | Milwaukee, WI 53202 | www.vonbriesen.com

Andrew T. Phillips aphillips@vonbriesen.com

Christine V. Hamiel chamiel@vonbriesen.com

For more information, visit

our website:

www.vonbriesen.com