Navigating transgender issues continues to be confusing and overwhelming for school districts. Districts are often faced with perplexing questions and complicated requests from both students and employees, which can lead to controversy in the district and the community. Without clear cut guidance, it is difficult to discern the correct way to handle these issues as they arise. However, this area of law continues to rapidly evolve and it is important for school districts to remain abreast of the changes as they occur. Recently, the federal government issued a strong pronouncement to districts on transgender student rights, of which all school districts should be aware.
In a recent Dear Colleague Letter, the U.S. Department of Education and the U.S. Department of Justice articulated “significant guidance” on the rights of transgender students. In this guidance, these federal agencies are clear in their strong support of transgender rights, stating that a school “must not treat a transgender student differently from the way it treats other students of the same gender identity.” In addition, the Dear Colleague Letter definitively states that transgender students be permitted to participate in sex-segregated activities and access sex-segregated facilities consistent with their gender identity.
While this recent pronouncement does not include any new policy positions, and no new laws or regulations governing transgender students have been created, the Dear Colleague Letter leaves no question as to the stance of these two federal agencies on transgender issues. The new guidance also includes a Q&A containing advice for school districts on supporting transgender students and ensuring safe, non-discriminatory environments for them.
Though the federal agencies have made their position clear, the policy statements and guidance do not have the force of law. Therefore, the guidance is not necessarily binding upon school districts across the country. It will instead be up to the courts to establish more definitive rules related to discrimination against transgender individuals and interpretation of gender identity in general. As school districts continue to find themselves at the center of litigation, challenges, and controversy related to transgender rights, it is clear that the educational landscape across the country will continue to transform. As a result, it is important for school districts to follow developments in the law to ensure compliance with the ever-changing law and reduce the risk of legal liability.
By Megan Savage Knox, an attorney with Bricker & Eckler, Columbus