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My professional perspective is of a counselor at a high school working with students. It my job to support the value, beliefs, and rights of all students including transgender students. The stigma and bias that transgender students face generates a challenge for schools to create a safe and inclusive atmosphere. Understanding the rights of these students is paramount in creating an environment that is equitable and engaging. I chose this topic of transgender student equity because this is an emerging subject-matter within K-12 schools. This Legal Guide will help administrators, counselors, and teachers facilitate an understanding of the legal rights of transgender students in order to best serve their needs.

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Transgender student equity is a developing topic within K-12 schools. Educators in K-12 schools are looking for guidance in supporting this increasing student population. Counselors must be keenly aware of the legal, ethical, and professional responsibilities in order to provide a safe and inclusive environment. The challenge for counselors will be to stay current on evolving social norms and legal rulings for transgender students.

At the for front of the issue is students in transition using the locker room, bathroom, or dressing room that corresponds to their perceived gender identity. Proponents argue that students should use the facility that corresponds to their birth gender identity. Forcing a transgender student to use a facility that does not match their inward identity could leave a serious psychological impact.  Legal debates have already begun over what should and should not be allowed for these students.

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The American School Counselor Association (ASCA) published an article in 2015 concerning advocating for best practices for the transgender and gender nonconforming students. The article, written by Carolyn Stone chair of the ASCA’s Ethics Committee, discusses various scenarios and best practices counselors, educators, and districts can prepare for concerning transgender and gender variant students. Among the best practices policies to consider in this article are student’s rights under FERPA, possible legal implications of openly assisting a student in transitioning without parental involvement, and guidance on advocating for stronger local policy for student protection concerning gender expression and identity.

https://www.schoolcounselor.org/magazine/blogs/september-october-2015/transgender-and-gender-nonconforming-students-adv

Reference:

Stone, C. (2015, Sept. 2015). Transgender and Gender Nonconforming Students: Advocate for Best Practices. Retrieved from

https://www.schoolcounselor.org/magazine/blogs/september-october-2015/transgender-and-gender-nonconforming-students-adv

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The article by Walsh (2020) discusses recent decisions by the U.S. Department of Education (DOE) concerning transgender athletes:

·        OCR does not support the Connecticut athletics authority's policy of permitting transgender female athletes to compete in girls’ categories.

·        The DOE affirms a ruling that transgender female athletes are taking away opportunities from cisgender girls in violation of Title IX

·        The DOE Office of Civil Rights (OCR) in warned the Connecticut athletics it could lose federal funds or other enforcement actions if they continued to allow transgender participation (Walsh, 2020).

·        The DOE does not believe a recent decision by the Supreme Court (Bostock v. Clayton County, 2020) concerning protection of employment based on sexual orientation of individuals applies to Title IX.

·        A federal lawsuit filed by cisgender female athletes against the competing transgender athletes and the Connecticut athletics is pending.

https://blogs.edweek.org/edweek/school_law/2020/09/education_dept_high_court_ruling.html

Reference:

Walsh, M. (2020). Education Dept.: High Court Ruling Does Not Support Transgender Athletes. Retrieved 21 September 2020, from https://blogs.edweek.org/edweek/school_law/2020/09/education_dept_high_court_ruling.html

Bostock v. Clayton County, 590 U.S. ___ (2020).

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In this article by De La Rosa (2019), LGBTQIA curriculum guidelines and mandates are discussed.

·        New Jersey began to mandate instruction recognizing the LGBTQIA community and its cultural contributions with the 2020 school year.

·        In California, the FAIR Education Act, requires elementary students to learn LGBTQ issues with civil rights and other protest movement.

·        Illinois is mandating students learn LGBTQ history in 2020.

·        De La Rosa equates LBGTQ curriculum development with improved tolerance among students.

https://www.educationdive.com/news/new-jersey-illinois-among-latest-to-mandate-lgbtqia-curriculum/567107/

Reference:

De La Rosa, S. (2020). New Jersey, Illinois among latest to mandate LGBTQIA curriculum. Retrieved 21 September 2020, from https://www.educationdive.com/news/new-jersey-illinois-among-latest-to-mandate-lgbtqia-curriculum/567107/

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The 14th Amendment of the United States of America and the Equal Protection Clause.

·        States are not allowed deprive any person of life, liberty, or property, without due process of the law.

·         Under the equal protection clause, all citizens are guaranteed equal protection under the laws of the United States.

·        Equal Protection refers to the idea that a governmental body must treat an individual in the same manner as others in similar conditions and circumstances.

Transgender persons have used this amendment as source to protect their individual rights.

Link to Law:

https:// amendments www.archives.gov/founding-docs/ -11-27

References

U.S. Const. amend. XIV, § 1.

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Bostock v. Clayton County (2020):

Ruled employers who fire an employee for being gay or transgender violates Title VII of the Civil Rights Act of 1964.

The Civil Rights Act of 1964, Title VII, outlawed discrimination in the workplace on the basis of race, color, religion, sex, or national origin.,

Ruling clarifies that the word “sex” in Title VII does include gay and transgender persons for protections from discriminations.

While this ruling deals with discrimination in the workplace for being gay or transgender, the ruling is already being used in conjunction with Title IX in discrimination cases within education.

Link to Law:

https://www.govinfo.gov/app/details/STATUTE-78/STATUTE-78-Pg241

References

Bostock v. Clayton County, 590 U.S. ___ (2020)

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The Education Amendment of 1972, or Title IX, prohibits the following:

discrimination on the basis of sex in any education program, curricular or extracurricular, or activity operated by a recipient of Federal financial assistance.

Sex discrimination and harassment is also included under Title IX. Discrimination includes student-on-student sexual harassment.

This law has been widely applied to equal opportunity in sports for females (20 U.S.C. § 1681).

Transgender students have begun challenging the denial of bathroom access that corresponds with their gender identity as opposed to their birth identity under Title IX (Booth, 2018).

Link to Law:

https://uscode.house.gov/view.xhtml?req=(title:20%20section:1681%20edition:prelim)%20OR%20(granuleid:USC-prelim-title20-section1681)&f=treesort&edition=prelim&num=0&jumpTo=true

References

Booth, A. (2018). From Jane to John: Protecting Transgender Individuals’ Right to Bathroom Access under Title Ix. Cumberland Law Review, 48(2), 519–552.

Title IX of the Educational Amendments of 1972, 20 U.S.C. § 1681 et seq.

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Several Administrative Laws have been enacted since 2000 to clearly define sexual discrimination in education. The Dear Colleague Letter of 2016 took a large step in defining transgender rights and gender identity guidance. However, the guidance was rolled back the next year without providing new guidance.

President Clinton Executive Order prohibits discrimination on the basis of sex in education programs and activities with respect to formal schools, extracurricular activities, and academic programs (3 C.F.R § 13160).

The U.S. Department of Justice (DOJ) and the Department of Education (DOE) wrote a joint Dear Colleague letter that issues guidance on treating a student’s gender identity as the student’s sex for purposes of Title IX and its implementing regulations on discrimination. Effectively, it allowed transgender students to use the restroom corresponding to their gender identity (Dear Colleague Letter, 2016).

In this 2017 Dear Colleague letter from the U.S. DOJ and the DOE, guidance under the 2016 Dear Colleague Letter was rescinded. Gender identity and the interpretation of the word “sex” when it comes to transgender identity and Title IX leaves the interpretation, decision, and implementation of gender identity issues within the states and local districts (Dear Colleague Letter, 2017).

Without written guidance from the DOE, districts can implement policies or work with transgender students on a case-by-case basis, or the districts can do nothing.

Link to Laws:

https://www.govinfo.gov/content/pkg/CFR-2001-title3-vol1/pdf/CFR-2001-title3-vol1.pdf

https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201702-title-ix.pdf

https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201605-title-ix-transgender.pdf

References

Battle, S., Wheeler, T. (2017, February 22). Dear Colleague Letter. Washington, DC: U.S. Department of Education, Office for Civil Rights. Retrieved from https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201702-title-ix.pdf

Exec. Order 13160, 3 C.F.R 279 (2000). https://www.govinfo.gov/content/pkg/CFR-2001-title3-vol1/pdf/CFR-2001-title3-vol1.pdf

Lhamon, C., Gupta, V.  (2016, May 16). Dear Colleague Letter. Washington, DC:   U.S. Department of Education, Office for Civil Rights. Retrieved from https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201605-title-ix-transgender.pdf

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Slide #10: Fort Worth Independent School District (ISD) Local Policy-

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Slide #10: Fort Worth Independent School District (ISD) Local Policy-

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Fort Worth ISD’s policy expressly forbids discrimination based on gender identity and expression and outlines policy guidelines in the district.

the administrative regulations of Fort Worth ISD policies seeks to insure the health and safety of all students, prevent discrimination and bullying, fostering conducive learning environment for all students, while providing equal access and opportunity to participate in all programs and activities.

Fort Worth ISD campus administrators, guidance counselors and other educators, are to insure a safe and supportive environment for transgender students and are expected to consider the needs of transgender students and their families on a case by case basis.

While there is no Texas state law defining transgender rights in schools, Fort Worth ISD implemented policies under the Texas Educator Code concerning the duties of Superintendents (Tex. Educ. Code § 11.201(8)).

Link to Law:

https://www.fwisd.org/site/handlers/filedownload.ashx?moduleinstanceid=4714&dataid=2590&FileName=FWISD_Transgender_Student_Safety_Guideline_1.pdf

References

Fwisd.org. 2016. FORT WORTH ISD TRANSGENDER STUDENT GUIDELINE. [online] Retrieved from: https://www.fwisd.org/site/handlers/filedownload.ashx?moduleinstanceid=4714&dataid=2590&FileName=FWISD_Transgender_Student_Safety_Guideline_1.pdf. Accessed 19 September 2020.

Superintendents, Tex. Educ. Code § Section 11.201(8)

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The American School Counselor Association (ASCA) defines the following Ethical Standard for the Underserved and At-Risk Populations:

·        A. 10.e. Understand students have the right to be treated in a manner consistent with their gender identity and to be free from any form of discipline, harassment or discrimination based on their gender identity or gender expression. (ASCA Ethical Standards for School Counselors, 2016).

Counselors in K-12 schools have a duty to protect all students and help create an atmosphere that is welcoming and inclusive. Transgender students, being defined by the ASCA as an at-risk population, deserve the same respect and treated just as fair as other students.

https://www.schoolcounselor.org/asca/media/asca/Ethics/EthicalStandards2016.pdf

References:

American School Counselor Association. (2016). ASCA Ethical Standards for School Counselors. Retrieved from https://www.schoolcounselor.org/asca/media/asca/Ethics/EthicalStandards2016.pdf

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The Canadian Teachers’ Federation compiled a guidebook for teachers to help lead teachers to understand the trials and tribulations of transgender students and how to respond to new and difficult situations. The comprehensive  68-page resource provides interviews, discussions, advice, and practical solutions that can be implemented at any school.

https://gendercreativekids.ca/wp-content/uploads/2013/10/Supporting-Transgender-and-Transsexual-Students-web.pdf

References:

Wells, K., Roberts, G., and Allan, C. (2012). Supporting transgender and transsexual students in K-12 schools: A guide for educators. Ottawa, ON: Canadian Teachers’ Federation.

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Slide #13: Bulleted list of Recommendations-

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Slide #13: Bulleted list of Recommendations-

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School counselors in K-!2 should follow the outlined recommendations in order to best serve transgender students:

·        Know and understand current laws concerning transgender student’s rights in order to intervene and support. Including:

o   Title VII (Civil Rights Acts, 1964), Title IX (Education Amendments, 1972), Equal Protection Clause (U.S. Const. amend IVX), and Freedom of Expression (U.S. Const. amend I).

·        Continue to keep updated on the changing laws and emerging legal cases and rulings concerning the transgender population especially interpretations of the Bostock v. Clayton County (2020) ruling.

·        Understand the ASCA Ethical Standards for school counselors (ASCA Ethical Standards for School Counselors, 2016), and the Texas Admistrator Code on Educator Ethics where it discusses  “the educator shall not exclude a student from participation in a program, deny benefits to a student, or grant an advantage to a student on the basis of race, color, gender, disability, national origin, religion, family status, or sexual orientation” (19 T.A.C § 247.2).

·        Understand the Texas Educator Code on the definition of bullying (Tex. Educ. Code § 37.0832) and the related policies with the Texas Association of School Board (TASB Policy FFI (Local), 2020).

·        Provide guidance to teachers, staff, and administration on best in all areas of nondiscrimination, tolerance, and acceptance where transgender students are involved.

·        Provide training under the Educator Code guidance on “preventing, identifying, and responding to bullying, as well as, implement strategies for establishing and maintaining positive relationships among students” (Tex. Educ. Code §21.451(d)).

·        Collaborate with transgender students and families to implement strategies that best support their needs.

References:

Civil Rights Acts, 1964

Educators’ Code of Ethics, 19 Tex. Admin. Code § 247.2.

Staff Development Requirements, Tex. Educ. Code §21.451(d).

Texas Association of School Boards (2020). Bullying, Cyberbullying and Hazing. TASB School Law e-source. Retrieved from https://www.tasb.org/services/legal-services/tasb-school-law-esource/students/documents/bullying-cyberbullying-and-hazing.pdf

Title IX of the Educational Amendments of 1972, 20 U.S.C. § 1681 et seq.

U.S. Const. amend I

U.S. Const. amend. XIV, § 1.