By Lawrence J. Altman
Lead Compliance Attorney, Exceptional Education Department
Kansas City Public Schools

I. Introduction

School administrators must deal with a multitude of issues so that all students not only receive an appropriate education, but also feel safe and secure in the education environment.   To illustrate, on August 20, 2013, the Office of Special Education and Rehabilitative Services and the Office of Special Education Programs issued a joint Letter providing schools with a suggested practice for preventing and addressing bullying. (Dear Colleague Letter 113 LRP 33753 (OSERS August 20, 2013)).   Although addressed as a “suggestion”, in reality this is a mandate from that bullying will not be accepted by the federal government.

Image Courtesy of Oklahoma.Gov

This Letter is in addition to all other mandates that schools already must follow: Compliance with IDEA, Section 504 of the Rehabilitation Act, Title IX, No Child Left Behind, and educational standards issued from the federal and state governments.   Now some schools have had to deal with how to appropriately handle transgender student requests that they be treated no differently from any other student, that they be allowed to identify their gender without school interference, and that once the transgender student identifies their gender identity, they be permitted to use all facilities associated with that gender. Because there is no clear federal guidance on how to address these issues, school administrators may be having difficulty in determining what must be done to comply with the law.

Currently only one state, California, has enacted legislation that mandates how schools are to address concerns of transgender students.  Without clear directives from the federal government, schools in the other forty nine-states and the District of Columbia may need to create school policies that guide the schools through what may become an area of extensive litigation. The following, therefore, is the current status of the laws, how the laws may impact transgender students, and what may be interfering with not only a school’s ability to address the issues, but may also prevent transgender students from “coming out” and publicly acknowledging their transgender status.

II. California Assembly Bill 1266

On August 12, 2013 California Governor Brown signed into law an amendment to Section 221.5 of the California Education Code.  Section 221.5 (f) allows transgender students to participate in athletics and use facilities in accordance with the child’s gender identity.  California Schools may no longer deny a transgender child the use of facilities or participation on athletic teams because the child’s gender choice conflicts with the gender listed upon the child’s records.  Thus, California public schools now have state law directives to follow for transgender students.

Image Courtesy of Department of Health and Human Services

Although California is the first state to pass a state law protecting transgender students’ right to choose, all is not quiet in California. In fact, an organization known as the California Resource Institute is attempting to put a petition on the 2014 ballot to repeal the statutory amendment.  It is possible, therefore, that some California public schools may wait for the outcome of the repeal petition before implementing the law.

III. Maine Case

In John Doe et al v. Kelly Clenchy, et al., the parents of a transgender child, along with the Maine Human Rights Commission, filed suit against a school district, claiming that the school had discriminated against a transgender child when the school refused to allow the child to use restroom facilities based upon the child’s gender choice.  The Commission found that the school violated Maine Law because it failed to prevent discrimination on account of the child’s gender identity and had discriminated against the child, when refusing the child access to public accommodations.  After both sides filed motions for summary judgment, the court ruled that a portion of the child’s public accommodations claim could move forward, but that the other portions of the child’s claims would be dismissed.

In ruling in favor of the school’s motion that it did not discriminate against the child when it failed to accommodate the child’s transgender status, the court said that no Maine statute, regulation, or case law supported this type of claim. Although Maine Law does make educational discrimination unlawful, the court opined that denying the child’s request to use the girl’s bathroom was not educational discrimination.  The court, moreover, rejected the Commission’s argument that Maine Law prevented discrimination based upon gender identity or expression.  Although this case is on appeal, as a result of this ruling, a transgender child’s desire to make a gender determination, without school interference, has been denied.

Image Courtesy of Department of Health and Human Services

IV. Federal Laws that May Provide Protections to Transgender Students

A. Title IX

In Wolfe v. Fayetteville Arkansas School District, 648 F.3d 860 (8^th Cir. 2011) the court approved the following jury instruction on a student on student harassment claim filed on behalf of a male student:

“To constitute sex-based harassment under Title IX, the harasser must be motivated by Wolfe’s gender or his failure to conform to stereotypical male characteristics.  If you find that the harassers were so motivated, then you may conclude that the harassment was based on his gender. If you find that the harassers were not so motivated, then you may not conclude the harassment was based on his gender.”

The court, in approving this instruction,  referred to the Supreme Court ruling in Davis v. Monroe County Board of Education, 526 U.S. 629, 119 S.Ct. 1661 (1999), requiring  a Title IX plaintiff to prove  that a defendant discriminated against them because of  their “sex or gender”.  (Wolfe)  Accordingly, Title IX protects persons from harassment on the basis of sex.  (Davis v. Monroe County Board of Education, 526 U.S. 629, 119 S.Ct. 1661 (1999))

The Wolfe court also said that harassment on the basis of sex means:  “the harassment was motivated by either Wolfe’s gender or failure to conform to gender stereotypes.”  (Wolfe v. Fayetteville Arkansas School District, 648 F.3d 860, at 867 (8^th Cir. 2011). And the court went on to say that the child could prevail under Title IX, if he could prove that the harassment was motivated because Wolfe failed to conform to “stereotypical male characteristics.” (Wolfe, citing Oncale v. Sundowner Offshore Servs. Inc. 523 U.S. 75, 118 S.Ct. 998 (1998). As result of the Wolfe ruling, an addition to the Title IX anti sexual-discrimination law may have been added:  Gender Stereotyping.

Image Courtesy of Department of Education

B. Office of Civil Rights

On March 25, 2011 the Office of Civil Rights distributed In re: Dear Colleague Letter of October 26, 2010, 111 LRP 32298 (Office of Civil Rights, March 25, 2011) explaining that its policy on addressing harassment in schools did not expand the  Davis v. Monroe County Board of Education, 526 U.S. 629, 119 S.Ct. 1661 (1999) Supreme Court’s liability standard for Title IX  claims. OCR explained that the Davis Court is the standard for a private right to recover damages for Title IX violations. On the other hand, OCR determines whether or not a school district has complied with federal civil rights regulations and does not determine whether or not damages must be paid to an individual. Thus OCR and Davis  are compatible.

OCR then stated that the Supreme Court in Gebser v. Lago Vista Independent School District, 524 U.S. 274(1998) allows federal agencies to use different enforcement methods than are permitted in claims where individuals are seeking monetary damages. To illustrate, when OCR finds a school has not complied with federal laws, federal funding can be taken from the offending school.  Thus OCR has not expanded private remedies for Title IX violations.   (In re: Dear Colleague Letter of October 26, 2010, 111 LRP 32298 (Office of Civil Rights, March 25, 2011))

The Letter also says that Title IX prohibits harassment “based on race or sex even where the conduct at issue may overlap with or is perceived to be harassment based on religion or sexual orientation.”  (In re: Dear Colleague Letter of October 26, 2010, 111 LRP 32298 (Office of Civil Rights, March 25, 2011) OCR pointed out, however, that the harassment must rise to the level of creating a hostile environment before Title IX is violated.  Accordingly, OCR will find that schools have violated civil rights laws, if they fail to protect transgender students from the adverse effect of a hostile environment directed at their gender identity.

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C. Federal Anti-Bullying Letter

The Office of Special Education and Rehabilitative Services and the Office of Special Education Program’s primary concern when it issued its joint Letter was bullying of disabled students.   (Dear Colleague Letter 113 LRP 33753 (OSERS August 20, 2013))   Yet the Letter made it clear that bullying of any student and for any reason is not acceptable. Thus the Letter requires schools to develop and implement anti-bullying policies that are in compliance with federal and state law.

Further, the Letter says that “clear behavioral expectations” are to be taught to staff and students “in the same manner as any core curriculum subject.”  (Dear Colleague Letter 113 LRP 33753 (OSERS August 20, 2013)).   This statement makes it clear that two federal agencies require schools to take any form of bullying seriously or face the consequences. Thus, transgender students have a federal directive that should provide them protection from bullying.

V. Stigma

Stigma is defined in the Webster’s Dictionary as “a mark of disgrace or infamy; a stain or reproach, as on one’s reputation.”  It could be argued that transgender people are stigmatized by others for no other reason than they are “different”.  And if this stigma exists, it has nothing to do with the conduct or accomplishments made by a transgender individual.   Rather, the stigma is created by how people perceive a transgender person and the fear of the unknown by those who do not understand what it is to be transgender.

In American culture, there are several examples of how the public stigmatizes groups of people.  To illustrate, people with mental illness and gay professional athletes have and may continue to have to deal with the stigma of who they are.

Image Courtesy of Department of Health and Human Services

A. Mental Illness

The Stigma connected to those who have mental illnesses prevents many people from seeking treatment.  We live in a society where there is a negative bias toward those diagnosed with or who seek treatment for mental illness.  Indeed, the stigma and bias that a person with mental illness faces in society creates a fear that prevents many from seeking assistance for their problems.

B. NBA player Jason Collins

NBA player, Jason Collins, announced, after the season, that he was gay. In an interview with Frank Lidz, published in the May 6, 2013 issue of “Sports Illustrated”, Jason said that he made the announcement because he was tired of living in fear and wanted to eliminate the “enormous amount of energy to guard such a big secret.”  Jason also stated that, “Everyone is terrified of the unknown” and that his coming out may not “completely disarm prejudice.”  So Jason pointed out issues he dealt with before his announcement, and what he expects will continue to happen as he moves forward.
Image Courtesy of SI.Com

C. How Stigma and Fear May Impact Transgender Students

Jason Collins may have said it as well as anyone:  “Everyone is terrified of the unknown.”  And this is one reason he waited to come out.  So, if a 7 foot, 255 pound NBA player who has made millions during his NBA career has these concerns, it would not be shocking for any transgender person to have the same feelings about announcing their status to the world.

Contributing to the stigma and fear are the reactions some people have when transgender rights are advocated.   For example, in California, shortly after the Governor signed into law a bill that allows transgender students freedom of gender choice in public schools, the California Resource Institute started the process of putting a petition before the voters to repeal the law.  According to a Bloomberg September 8, 2013 web article, written by James Nash, Karen England, the executive director of the Institute, is quoted as saying that the law needs to be repealed because it “goes too far”.  And in the same publication, Doug Boyd, a California attorney, is quoted to say that he wants repeal of the law because, “It’s against the laws of God and nature.”

In addition, the “MassResistance” group in Massachusetts is opposed to any state law that protects the rights of transgender individuals. In fact, this group has posted pictures of transgender individuals on the internet stating that the pictures of “men” dressing as “women” are “sickening”. In addition, MassResistance is critical of attempts to pass state legislation protecting the rights of transgender students, “warning” the public that “more horrors” are on the way.  Thus Massachusetts appears to have a vocal group opposed to transgender rights.

The fear of the unknown, public attacks against any law that attempts to protect transgender students,  along with the stigma some would attach to transgender persons will not only stand as an obstacle to openness, but may contribute to the pressure transgender people feel when trying to keep their “secret”.  As Jason Collins said, keeping a secret like this takes lots of energy.  Accordingly until the fear of the unknown is ended, group attacks are curtailed, and the stigma that may attach to transgender people eliminated, many transgender people may continue to hold onto their secret, no matter the emotional and physical cost.

VI. Conclusion

School administrators will need to look first to their state laws and federal laws to determine what protections are afforded transgender students.   To illustrate, for schools within the jurisdiction of the Eighth Circuit, Title IX may protect transgender students from gender stereotyping.  (Wolfe v. Fayetteville Arkansas School District, 648 F.3d 860, at 867 (8^th Cir. 2011)) In addition the Office of Civil Rights will use Title IX to protect transgender students from harassment that creates a hostile educational environment. ( In re: Dear Colleague Letter of October 26, 2010, 111 LRP 32298 (Office of Civil Rights, March 25, 2011)).  Schools around the country, therefore, have at least one federal directive that affords transgender students protection.

Image Courtesy of Department of Health and Human Services

Instead of looking to legal methods, however, perhaps everyone needs to approach “transgender issues” from a different perspective.  In fact a lesson on understanding and acceptance of those who appear or are perceived to be different, might be learned from the 1985 movie “Enemy Mine” starring Dennis Quaid and Louis Gossett, Jr.  The story takes place late in the twenty-first century. Earth is at war with another planet, occupied by a humanoid race called Dracs, who look like reptiles.  During the war, Dennis and Louis are space fighter pilots that get shot down and are forced to crash land on the same desolate mining planet.

Both are forgotten by their respective comrades.   And, at first, the two soldiers continue the war.    Dennis and Louis then realize that to survive, they must work together. As they live and work together, however, each teaches the other their respective language and about their respective cultures.   Accordingly, over the years, both become close friends.

Up to this point, Dennis and the audience believe that Louis is a male.  Then something dramatic happens: Louis tells Dennis he is with child that when born will be called “Zammis”.  Dennis now realizes that Louis has gender traits of male and female.  Yet nothing changes between the two, as they remain best friends, both waiting for the joyful day of birth to arrive.

Unfortunately, during child birth, Louis dies. Now Dennis, alone, must raise a child from a different race. And he does so with complete dedication, and teaches Zammis lessons about both cultures.  During one scene between Dennis and Zammis, when the child wants Dennis to describe Louis, Dennis, with a big smile, tells Zammis that, “your parent was my friend.”  In fact the only difference that Dennis and Zammis discuss between their two races is that humans have five fingers and Dracs have three.

Later, Zammis is taken prisoner by earth miners, who use Drac slave labor to dig in the mines for precious metals.  As Dennis tries to rescue Zammis, he is shot by one of the miners and left for dead.  Somehow, despite years of non-contact from the earth space command, a “scan” is done of the planet, and Dennis is discovered by earth troops, badly injured, but alive. As a result Dennis is taken to the main space vessel of the Earth space fleet for medical treatment.

During treatment, however, while in a state of semi-consciousness, Dennis is heard speaking in the language of the Dracs.  As Dennis is brought back to health, this concerns the senior Earth officers. After Dennis recovers, he states he is going back to the planet to rescue Zammis.  He is told, however, this is against Earth Fleet orders. Orders or not, Dennis flies back to the planet because he is determined to rescue Zammis.

Arming the Drac slaves, Dennis is able to rescue Zammis. But until he takes Zammis out of the mines where Zammis and the other Dracs were held captives, he does not realize that a group of Earth troops have followed Dennis to the planet.   After exiting the mine, Dennis and Zammis are seen hugging with joy between two armed groups: Earth people and Dracs.

Rather than shooting each other, the two races observe “parent and child” hugging one another and telling each how much they love the other.  People on both sides are in tears as they watch this touching scene. Weapons are put down. The war ends because Dennis and Zammis have shown that everyone just wants to be loved and accepted for who they are, not how someone perceives them to be.  Perhaps this is a lesson that can be applied before people rush to pass judgment upon transgender people.

All text by Lawrence J. Altman. All images were supplied by Una.