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I am working towards a masters in guidance and counseling. The topic of gender equality is examined from a high school counselor perspective. This topic is relevant and evolving.  Professionals need to understand the legal and ethical implications.

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Gender equality is advancing in the educational setting. In particular, the rights of transgender persons are in state of fluctuation. As changes develop, educators need to stay abreast of the legal and ethical directives that follow.

A current controversy is transgender students in athletic competitions. Schools are trying to balance fair play while also not alienating transgender persons. President Biden signed a nondiscrimination executive order that in part states, “Children should be able to learn without worrying about whether they will be denied access to the restroom, the locker room, or school sports” (The White House, 2021). In a counter move, Mississippi joined over twenty states that have passed bills banning transgender athletes from competing in girls’ or women’s sports (Associated Press, 2021). The outcome of this debate could have far-reaching effects, including added strain in the relationships of different-minded groups. Educators need to be cognizant of this and work to facilitate harmony.

The Associated Press. (2021, March 11). Mississippi governor signs bill limiting transgender athletes. AJC. https://www.ajc.com/news/nation-world/mississippi-governor-signs-bill-limiting-transgender-athletes/6MBLKIYXW5G5LML2EANHMA3GCM/

The White House. (2021, January 20). Executive order on preventing and combating discrimination on the basis of gender identity or sexual orientation. The White House. https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/20/executive-order-preventing-and-combating-discrimination-on-basis-of-gender-identity-or-sexual-orientation/

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Gender identity is discussed in the ASCA School Counselor.  The first half of the article deals with general sexual harassment.  The last section subtitled, “Title IX Changes and Transgender Students,” focuses on the latest court cases concerning transgender students in schools.  The Fourth Circuit Court has decided that not allowing students to use the restroom of their gender identity violates their rights under Title IX.  Another court case cited Title VII of the Civil Rights Act of 1964 to make the point that discriminating against a person for their sexual orientation or gender identity is the same as sex discrimination, which then falls under Title IX. These cases signal a change in attitude toward transgender students.

Stone, C. (2020). Whiplash in Title IX. ASCA School Counselor, 58(2), 6-9. https://www.schoolcounselor.org/Magazines/November-December-2020/Whiplash-in-Title-IX

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School District Asks U.S. Supreme Court to Decide Scope of Transgender Student Rights

The article focuses on the court case Grimm v Gloucester County School Board. A transgender student wanted to access the boys’ restroom and was allowed to do so until parents complained.

The latest ruling by the 4th Circuit Court of Appeals sides with the student citing Title IX. The court referenced the 2020 Supreme Court case of Bostock v Clayton County in which a transgender employee was fired on the basis of sexual orientation. The Bostock case used Title VII of the Civil Rights Act of 1964 to show sexual discrimination in the workplace.

The Gloucester County School District is again appealing to the Supreme Court to take up the case. At one point the Supreme Court granted review of the case but sent it back to the lower courts after the Trump Administration withdrew the Obama Title IX guidance.

Walsh, M. (2021, February 19). School district asks Supreme Court to decide scope of transgender student rights. Education Week. https://www.edweek.org/policy-politics/school-district-asks-u-s-supreme-court-to-decide-scope-of-transgender-student-rights/2021/02

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What Biden's Early Executive Orders Mean for K-12

The article discussed COVID-19 responses, DACA protections, and Title IX protections for LGBT persons. The executive order on LGBT rights references the 2020 Supreme Court case, Bostock v Clayton County, in which the court sided with the transgender person that was fired on the basis of sexual orientation.

The previous Secretary of Education, Betsy DeVos, supported excluding transgender students from locations and activities that were not in line with their biological sex.

The new Secretary of Education is being asked to revise or issue new guidance that would protect LGBT rights.

The article acknowledges that there are many court cases pending that may impact how Title IX is interpreted.

Modan, N. (2021, January 22). What Biden’s early executive orders mean for K-12. Education Dive. https://www.k12dive.com/news/what-bidens-early-executive-orders-mean-for-k-12/593752/

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o   1868 - Constitutional Law: The Fourteenth Amendment was added to the U.S. Constitution under the reconstruction amendments. It provides all citizens equal protection under the law. This includes students regardless of their gender or gender identity.

U.S. Const. Amend. XIV. https://constitution.congress.gov/browse/amendment-14/

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o   1974 - Statutory Law: The Equality Act of 1974 prohibits discrimination against anyone on the basis of sex, marital status, or sexual orientation in public facilities or in public education.

Equality Act of 1974, H.R. 14752, 93rd Cong. (1974). https://www.congress.gov/bill/93rd-congress/house-bill/14752

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o   2020 - Administrative Law: The UIL subchapter J § 360(h) non-discrimination policy has answered the question of transgender students in sports.  It has established that participants in sports must adhere to the gender assigned on their birth certificate. Girls may participate on boys teams when there is not a similar team for girls. On mixed team sports, an athlete must play the position of their birth certificate gender.

University Interscholastic League. (n.d.). Nondiscriminatory policy. Retrieved February 11,
2021, from https://www.uiltexas.org/policy/constitution/general/nondiscrimination

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o   2020 - Judiciary Law: Adams v School Board of St. Johns County, Florida makes it clear that a school cannot discriminate on the basis of gender or gender identity in regards to bathroom use.  The court found that the presence of a transgender student in a boy’s restroom does not violate the privacy of any student.  The court found that the school board violated both the 14th Amendment and Title IX of the Civil Rights Act of 1964.

Adams v School Board of St. Johns County, No. 18-13592, 11th Cir. (2020). https://law.justia.com/cases/federal/appellate-courts/ca11/18-13592/18-13592-2020-08-07.html

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o  “Gender-based harassment includes physical, verbal, or nonverbal conduct based on the student’s gender, the student’s expression of characteristics perceived as stereotypical for the student’s gender, or the student’s failure to conform to stereotypical notions of masculinity or femininity. Gender-based harassment can occur regardless of the student’s or the harasser’s actual or perceived sexual orientation or gender identity” (Dallas ISD, 2020)

Dallas ISD is taking steps to address the changing climate on gender equality by including harassment protection for gender identity.

Dallas ISD. (2020). Student handbook https://www.dallasisd.org/Page/127

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The American Counseling Code of Ethics includes a statement of nondiscrimination. According to Code C.5, counselors must not condone or engage in discrimination against a student based on numerous attributes including gender, gender identity, or sexual orientation.

American Counseling Association. (2014). 2014 ACA code of ethics. https://www.counseling.org/doc  s/default-source/default-document-library/2014-code-of-ethics-finaladdress.pdf?sfvrsn=96b532c_2

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The politics section of Advocatec.com has informative articles regarding LGBTQ+ news. There are articles on bills submitted at the state level as well as information about what is happening in Congress that affects or redefines gender equality.

Advocate. (2021, March 10). Politics.   https://www.advocate.com/politics

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Slide 13 - Recommendations/Best Practices

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Slide 13 - Recommendations/Best Practices

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Stay abreast of court cases that affect gender equality.

Presently, transgender students may use the restroom reflecting their gender identity based on Adams v School Board of St. Johns County and Grimm v Gloucester County School Board (Stone, 2020).

There is no national decision on transgender athletes in school sports.

Texas UIL guidelines currently declare a participant is considered the gender on their birth certificate for sports participation eligibility. (University Interscholastic League, n.d.).

The governing body Alaska School Activities Association leaves the question of gender specific sports up to the individual schools.  In the 2019-2020 handbook the association allowed each student’s member school to decide gender “based upon prior written and objective criteria adopted by the school (Strickland, 2019). "If the school does not have a prior written objective policy, the student participates based on the gender assigned at birth" (Strickland, 2019).

Be alert for any changes to these policies.

Discrimination on the basis of gender, gender identity, or sexual orientation is prohibited legally and ethically.

In Bostock v Clay County, Georgia the supreme court applied the protections in Title VII of the Civil Rights Act of 1964 to homosexual and transgender people. Justice Gorsuch wrote in the majority opinion, ". . . it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex” (Bostock v. Clayton County, 2020).

According to the American Counseling Association Code of Ethics, counselors must not condone or engage in discrimination against a student based on numerous topics including gender, gender identity, or sexual orientation (ACA, 2014).

Take note of the political atmosphere shifts that occur with new presidential administrations.

The Trump Administration rescinded guidelines put in place by the Obama Administration that said Title IX protected students from discrimination based on gender identity (Kreighbaum, 2017).

The Biden Administration signed an executive order in January of this year that declares Title IX protects students on the basis of gender identity (Walsh, 2021).

American Counseling Association. (2014). 2014 ACA code of ethics. https://www.counseling.org/doc  s/default-source/default-document-library/2014-code-of-ethics-finaladdress.pdf?sfvrsn=96b532c_2

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

Kreighbaum, A. (2017, February 23) Transgender protections withdrawn. Inside Higher Ed. https://www.insidehighered.com/news/2017/02/23/trump-administration-reverses-title-ix-guidance-transgender-protections

Stone, C. (2020). Whiplash in Title IX. ASCA School Counselor, 58(2), 6-9. https://www.schoolcounselor.org/Magazines/November-December-2020/Whiplash-in-Title-IX

Strickland, B. (2019). 2019-2020 ASAA Handbook. Alaska School Activities Association. https://asaa.org/wpcontent/uploads/handbook/2021handbook/asaa/complete/2020-2021-ASAA-Handbook.pdf

University Interscholastic League. (n.d). Nondiscriminatory policy. Retrieved February 11,
2021, from https://www.uiltexas.org/policy/constitution/general/nondiscrimination

Walsh, M. (2021, February 19). School district asks Supreme Court to decide scope of transgender student rights. Education Week. https://www.edweek.org/policy-politics/school-district-asks-u-s-supreme-court-to-decide-scope-of-transgender-student-rights/2021/02