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Freedom of Expression for Transgender Students on Campus

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Freedom of Expression for Transgender Students on Campus

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The perspective is a middle counselor informing school staff on the K-12 educator's legal role of a student's freedom of expression on campus or in schools.

This Padlet will serve as a resource for staff at McCarroll Middle School after being made aware of laws and ethical standards on the topic.  The purpose is that staff of MMS will have a resource to refer back to when dealing with these types of circumstances.

I chose this topic because gender expression is becoming a popular issue on campus. As the current counselors and I have been registering students for next year, we have seen an increase in questioning of filling out gender or male/female on registration forms.

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Do I have the right to freedom of speech while I am at school?

YES. You do not lose the right just because you are at school or a student.

What is freedom of speech?

Freedom of speech protects your right to express your ideas and beliefs in the manner that you choose. Freedom of speech protects what you say, what you write, and how you express yourself. It protects your ability to protest, meet with other people, and organize.

Can my school place limits on my freedom of speech?

SOMETIMES, YES. But only if your expression causes a "substantial disruption" at school or infringes on the rights of other students or school staff.

What counts as a "substantial disruption"?

Your speech creates a substantial disruption when it encourages violations of school rules or illegal activities.

When does my speech infringe on the rights of others?

Your speech infringes on the rights of others when it substantially interferes with another person's education or physical or mental health, when it threatens or intimidates another person, when you say untrue things that may harm another person's reputation, or when you use obscene or vulgar language.

Can my school stop me from expressing my opinion because they don't like it?

NO. Schools officials can't censor you just because they don't agree with your point of view.

Can my school restrict the type of language I use to express myself?

SOMETIMES, YES. For example, your school has the right to say that students cannot use profanity. It can also limit your speech if it contains language that contains graphic sexual references.

Can my school restrict speech about drugs or other illegal activities?
YES.
Can my school restrict speech that it considers "false"?

SOMETIMES. Your school can ban speech that it considers "libelous" or "slanderous." These terms mean speech that (1) you know is false or should know is false, and (2) is harmful or potentially harmful to someone else's reputation.

Can my school restrict speech that criticizes school officials?

NO, unless your criticism includes profanity, inappropriate sexual references, or slanderous statements.

Can my school restrict speech that it says is "harassment"?

YES. If your speech is causing substantial interference with the education or physical or mental health of another student, or is threatening or intimidating another student, then it is not protected.

Can my school punish me for speech that it considers to be a "threat"?

YES, if your speech intends to threaten harm. Your words must be so clear and convincing that the person has a reasonable fear for his or her safety. Do I have the right to organize a protest at school?

YES, so long as it is a peaceful and orderly protest. For example, this could include one at lunch or before or after school. If you are organizing a protest, you should check your school's written rules on student speech.

Can my school censor my article for the school newspaper?

NO, unless your article contains profanity, inappropriate sexual references, or slanderous statements.

Do I have the right to pray at school?

YES, so long as your prayer does not disrupt other students or force them to participate.

What can I do if my school tries to censor or prevent my speech?

If your school is trying to censor your speech, you should ask to see their rules. Your school is required to write down its rules on student speech and publications. i You should also ask your school to explain why it wants to ban your expression.

If your school thinks your speech is substantially disruptive or infringes on the rights of other students it may have the right to censor your speech. You may have to go to court to get a final decision.

Endnote:
i California Education Code § 48907

Source: MySchoolMyRights.com

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Your Rights: Student Expression | ACLU of Northern CA

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YES. You do not lose the right just because you are at school or a student. Freedom of speech protects your right to express your ideas and beliefs in the manner that you choose. Freedom of speech protects what you say, what you write, and how you express yourself.

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In many settings, especially those of 504 and registering current students for next school year, I was able to talk with and interview my assistant principal and both counselors that I work with on campus. Our school district is in a rural town and we are not yet faced with what we call a real-world issue yet. All of us have noticed an increase in transgender students this year. As we have been assisting students fill out the required forms for next year, I have noticed that with students that are questioning the male/female piece of the form, we have explained that this is for athletic purposes, which helps because some of these are not in athletics. Therefore, that part of the form does not need to be filled out. I think that as we are noticing this issue come up, it requires us to address it and come up with protocol. My assistant principal explained to me that we are to call the student what they wish to be called, even if it does not match what our school district system says. In a recent 504 meeting, the mother of the student asked us to call her child by the name she had given the student, and we did so. However, as explained by my assistant principal, we do not reveal details of what the student prefers at school due to the student's privacy.
Currently we have a handful of transgender students at the middle school that have identified themselves as though. This needs to be addressed, because it will only become a more popular topic.

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The National Education Association (NEA) offers many resources in dealing with transgender students and their freedom of expression. In fact, the association has a downloadable version of student rights.
NEA link: https://www.nea.org/sites/default/files/2020-07/2018_Legal%20Guidance_Transgender%20Student%20Rights.pdf

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American School Counselor Association. (2016). ASCA Ethical Standards for School Counselors. Retrieved from https://www.schoolcounselor.org/getmedia/f041cbd0-7004-47a5-ba01-3a5d657c6743/Ethical-Standards.pdf

Beaty, A. (March 2021). Personal interview.

Blad, E. (October, 2020).

Biden on transgender children’s rights: There should be zero discrimination. Education Week. Retrieved from: https://www.edweek.org/policy-politics/biden-on-transgender-childrens-rights-there-should-be-zero-discrimination/2020/10

Enis, L. (February 2021). Personal interview.

Jackson, C. (March 2021). Personal interview.

National Education Association. (June 2016). Legal guidance on transgender rights. Retrieved from: https://www.nea.org/sites/default/files/2020-07/2018_Legal%20Guidance_Transgender%20Student%20Rights.pdf

U.S. Const. amend. XIV

United States Department of Justice. (June, 2012). Equal access to education:
Forty years of title IX. Retrieved from: https://www.justice.gov/sites/default/files/crt/legacy/2012/06/20/titleixreport.pdf

Walsh, M. (December, 2020). High court declines challenge to district policy protecting transgender students. Education Week. Retrieved from: https://www.edweek.org/policy-politics/high-court-declines-challenge-to-district-policy-protecting-transgender-students/2020/12

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High Court Declines Challenge to District Policy Protecting Transgender Students

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High Court Declines Challenge to District Policy Protecting Transgender Students

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Article author, Mark Walsh, explains that the U.S. Supreme Court declined an appeal made by Dallas High School in Dallas, Oregon to hear a case of born biologically female, now male, transgender student who was denied use of locker room based on his current gender identity. The court settled that the student was able to utilize locker room space and that was not discriminatory.
"The challengers are not using Title IX to ensure that they have equal access to bathrooms and locker rooms as compared to members outside their protected class. Rather, they are trying to use Title IX to take away something which the school district granted the transgender boy to ensure that he was not denied equal access to bathrooms or locker rooms just because his gender did not match the gender typically associated with his sex at birth" (Walsh, 2020).

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The U.S. Supreme Court has declined to take up the appeal of a group of parents and students who objected to an Oregon school district's policy of allowing transgender students to use restrooms, locker rooms, and showers matching their gender identity.

The challengers sued over the policy of the 3,000-student Dallas, Ore., school district, which adopted its student safety plan after a student at Dallas High School who was born biologically female began identifying as male in 2015. The plan allowed the student to use facilities matching his gender identity and included training for staff and lessons for students against bullying and harassment.

The parents and students objected to the policy as a form of sex discrimination that violated Title IX of the Education Amendments of 1972, as well arguing that their parental and privacy rights were infringed.

Both a federal district court and a panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, upheld the school district's policy.

"We ... hold that a policy that treats all students equally does not discriminate based on sex in violation of Title IX, and that the normal use of privacy facilities does not constitute actionable sexual harassment under Title IX just because a person is transgender," the 9th Circuit panel ruled in February. "We hold further that the Fourteenth Amendment does not provide a fundamental parental right to determine the bathroom policies of the public schools to which parents may send their children."

In their appeal of that ruling in Parents for Privacy v. Barr (Case No. 20-62), the parents and students (and two parental organizations) said the district's policy "interferes with parents' rights to direct the upbringing of their children, schoolchildren's rights to bodily privacy, parents' and children's rights to free exercise of religion, and children's rights to be free from hostile educational environments under Title IX."

The appeal also said the case would give the justices the chance to address questions left unanswered in their June decision in Bostock v. Clayton County, Ga., which held that transgender employees were protected by federal anti-discrimination law.

The Dallas district, in a brief urging the high court not to hear the case, pointed out that the transgender boy who inspired the policy used facilities corresponding to his gender identity without incident before graduating.

The challengers "are not using Title IX to ensure that they have equal access to bathrooms and locker rooms as compared to members outside their protected class. Rather, they are trying to use Title IX to take away something which the school district granted the transgender boy to ensure that he was not denied equal access to bathrooms or locker rooms just because his gender did not match the gender typically associated with his sex at birth."

The justices on Dec. 7 declined without comment to hear the parents' and students' appeal.

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High Court Declines Challenge to District Policy Protecting Transgender Students

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The U.S. Supreme Court has declined to take up the appeal of a group of parents and students who objected to an Oregon school district's policy of allowing transgender students to use restrooms, locker rooms, and showers matching their gender identity.

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Biden on Transgender Children’s Rights: ‘There Should Be Zero Discrimination’

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Biden on Transgender Children’s Rights: ‘There Should Be Zero Discrimination’

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Pre-inauguration, Evie Blad reported that Biden responded to a fellow American at a town hall meeting in Philadelphia. Biden assured the man who claimed he had a transgender eight year old, that he would reinstate Obama's guidance of transgender students in  Title IX. This guidance was rescinded by DeVos, Trump's Secretary of Education, leaving those issues up to the state. "Biden’s platform says that he would reinstate that guidance “on day one” and that he would “direct his Department of Education to vigorously enforce and investigate violations of transgender students’ civil rights" (Blad, 2020).

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Biden on Transgender Children's Rights: 'There Should Be Zero Discrimination'

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Former Vice President Joe Biden reassured a mother in a nationally televised town hall event Thursday that he would protect her transgender daughter's rights if he is elected president, Mieke Haeck, an audience member at the ABC News Town Hall in Philadelphia, said she had two daughters, and that the younger one, who is 8 years old, is transgender.

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Texas Education Code does not clearly address gender but does address and state that students are eligible for public education based on age. There is no mention of gender. This would continue to fall under Title IX.

(Tex. Educ. Code § 30A.002)

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DISD McCarroll Middle School Student Handbook

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DISD McCarroll Middle School Student Handbook

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The campus student handbook states the definition of discrimination including that of sex and gender.

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Campus Policies / District Student Handbook

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- Title IX prohibits discrimination on the basis of sex in education programs and activities
operated by recipients of federal financial assistance.

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The 14th Amendment provides civil rights for all citizens of the United States, including those of transgender.

(U.S. Const. amend. XIV)

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Amendment XIV

Section 1.

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section 2.

Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a state, or the members of the legislature thereof, is denied to any of the male inhabitants of such state, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state.

Section 3.

No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

Section 4.

The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any state shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Section 5.

The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

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All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.

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Currently there is no law specifically concerning transgender students. Since Trumps Secretary of Education, DeVos, it has been left up to the states. I did find Rhode Island's pursuant of the law "...prohibiting discrimination on the basis of sex, gender, sexual orientation, gender identity, or gender expression in schools" (Cornell Law School)

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The Commissioner, pursuant to R.I. Gen. Laws § 16-38-1.1(a)(5) has the authority to promulgate regulations to enforce the statutory requirements prohibiting discrimination on the basis of sex, gender, sexual orientation, gender identity, or gender expression in schools.
1.2 Definitions

A. "Gender non-conforming" means a term used to describe people whose gender expression differs from stereotypic expectations. This includes people who identify outside traditional gender categories or identify as both genders. Other terms that can have similar meanings include "gender variant", "gender expansive", or "gender atypical".

B. "Transgender" means an umbrella term used to describe a person whose gender identity or gender expression is different from that traditionally associated with their assigned sex at birth.
1.3 Protection for Transgender and Gender Nonconforming Students

A. Programs and activities operated by Rhode Island public educational agencies shall be free from discrimination based on sex, gender, sexual orientation, gender identity or gender expression. By July 1, 2018, each Local Education Agency ("LEA") shall adopt a policy addressing the rights of transgender and gender non-conforming students to a safe, supportive and non-discriminatory school environment.

B. The LEA policy shall be consistent with state and national best practices, guidance, and model policies and shall address, at a minimum, such issues as confidentiality and privacy, discipline and exclusion, staff training, access to school facilities and participation in school programs, dress codes, official school records and use of preferred names and pronouns.

C. The LEA shall inform all members of the school community, including all school personnel, students, and families about this policy.

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Part 1 - Regulations Governing Protections for Students Rights to be Free from Discrimination on the Basis of Sex, Gender, Sexual Orientation, Gender Identity, or Gender Expression (200-RICR-30-10-1)

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The Commissioner, pursuant to R.I. Gen. Laws § 16-38-1.1(a)(5) has the authority to promulgate regulations to enforce the statutory requirements prohibiting discrimination on the basis of sex, gender, sexual orientation, gender identity, or gender expression in schools. 1.2 Definitions A. "Gender non-conforming" means a term used to describe people whose gender expression differs from stereotypic expectations.

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A. RESPONSIBILITY TO STUDENTS
A.1. Supporting Student Development
School counselors are obligated to ensure that students are treated respectfully.

A.11. Bullying, Harassment and Child Abuse
School counselors:
a. Report to the administration all incidents of bullying, dating
violence and sexual harassment as most fall under Title IX of
the Education Amendments of 1972 or other federal and state
laws as being illegal and require administrator interventions.
School counselors provide services to victims and perpetrator
as appropriate, which may include a safety plan and reasonable
accommodations such as schedule change, but school counselors
defer to administration for all discipline issues for this or any
other federal, state or school board violation.

Both of these ethical practices ensure that the school counselor aids in student success and reports behavior that doe snot meet expectation. Although neither standard specifically addresses transgender students or the expression of, both standards involve treating equally and procedure against discrimination.

(ASCA Ethical Standards for School Counselors, 2016)

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In learning more about what is taking place on my campus currently, plus having to answer or have conversations with students who are transgender, it has opened my eyes to find answers and appropriate protocol. I learned that politics are playing a huge role in constitutional rights. It seems the blame game of this administration to that is taking place, yet no real answers or decisions have been made since the Trump administration allowed the issues to be followed up with the state. There again, nothing specifically addresses transgender. However, Title IX is being upheld. Yet the real problem lies in athletics and bathroom choice. Currently in our school, none of our transgender students are in athletics and they are able to use a staff bathroom located on the main hallway. Decatur ISD's board policies do not address transgender rights in students, only that of eligibility in employment. I expect that this issue will be addressed much more frequently in the times to come. While in my current role as an educator and future role as school counselor, my job will be to protect these students' freedom of expression. I will also offer them support to avoid discriminatory situations.

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Form a team compiled of members that hold validity on the subject.

I currently serve on our district's Diversity and Inclusion Committee. The group is made of of various campus' staff, community members, etc.

Create a consistent plan that supports students at all levels of their education.

School Counselors should attend trainings regularly to keep apprised of such issues.

Educate district staff frequently on changing culture/trends. People don't know what they don't know. This will also eliminate bias and judgements.

Be willing to revisit constructed plans frequently and amend/change as needed to better support the district's students.

School Counselor should incorporate behavior expectations in guidance lessons to avoid discriminatory actions from peers.

School Administration should provide students with behavior expectations and consequences of actions to all.

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National Center for Transgender Equality

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Here's how to make your school better for trans students or advocate for yourself or your family.
Visit our other action centers here: National Fight Back Action Center | State Action Center

Here's what you need to know

Anti-transgender discrimination is illegal-no matter what the Trump administration says. As the vast majority of courts have said, transgender students are protected under Title IX, the federal law that makes sex discrimination in schools illegal, and by the U.S. Constitution. And as educators and child health experts recognize, treating transgender students with respect is not only required under the law, it's also the right thing to do.

Some people are worried about what the Trump administration's actions mean for them and their family. Just days after taking office, the Trump administration withdrew an Obama-era guidance document ​that clarifies what laws like Title IX require when it comes to treating transgender students fairly. That was a callous attack that left a lot of people worried, scared, and angry. And it created confusion for schools and sent them a message that discriminating against trans studnets is okay. But the Trump administration's actions did not-and can not-change what Title IX requires or make it any less illegal to discriminate against transgender students . Take a look at NCTE's FAQ to learn more about what this means for you.

There's a lot you can do to make sure that trans students at your school are protected. You can work with your teachers or school administrators to adopt policies at your school and school district that explicitly protect trans students from discrimination. And trans students who face discrimination can still enforce their rights under Title IX and the Constitution with a lawyer's help or file complaints with state agencies, since many of them have helpful policies or rules. Learn more about how to do that by taking a look at NCTE's Know Your Rights guide.

Here are some tips for making a difference at your school

Any school can decide that it wants to have a policy that supports transgender students. Here are some tips on how to improve your school's policies.

1. Come up with a game plan. Think about what would work best at your school.

Who can help? A supportive teacher or counselor, or other students or parents? Creating a team is almost always easier than going it alone.

After you have your team, what is your strategy? Do you want to go quietly to the school principal? Go to the school board? Do you need to go loud with a community campaign?

2. Meet frequently and adjust your strategy. Should you try a different approach? Should you contact the media?

3. Use the resources on this page. Collected below are resources from the government, as well as resources from NCTE and other non-profits.

Great resources to take to your school officials:

Resources by NCTE and Partner Organizations

NCTE and GLSEN's Model School Policy, which includes policies that schools can adopt to support trans students

Schools in Transition, a practical guide to help school officials address issues affecting trans students

This FAQ on trans students and restrooms, which addresses common questions school officials may have about restroom access. It is endorsed and supported by the American School Counselor Association, the National Association of Elementary School Principals, the National Association of School Psychologists, and the National Association of Secondary School Principals.

This policy from the American Academy of Pediatrics, recommending that transgender students be supported and affirmed in their gender identity, including at school

Lambda Legal's Safe Havens: Closing the Gap Between Recommend Practice and Reality for Transgender and Gender-Expansive Youth in Out-of-Home Care, a comprehensive analysis of the troubling lack of explicit laws and policies in most states to protect transgender, gender-expansive and gender non-conforming (TGNC) youth in the child welfare, juvenile justice, and runaway and homeless youth systems ("out-of-home care systems").

NCTE's FAQ explaining what the Trump administration's decision to overturn the Title IX guidance means.

Key Resources from U.S. Department of Education

Federal guidance on respecting trans students .This letter, which went out to schools around the country, says that trans students should be treated according to their gender identity, including when it comes to names and pronouns, dress codes, and restrooms. ​While the Departments of Justice and Education have now withdrawn the guidance document, you can still give it to your school to show them examples of what supportive policies look like.

Examples of supportive policies from the Department of Education . These examples show different approaches schools across the country have taken across a range of issues, and it has not ​been rolled back.

Federal guidance on bullying and harassment , including gender-based and anti-transgender bullying. This guidance from the Department of Education has not ​been rolled back.

Make a difference in your state and nationwide

State Rules or Guidance for Schools

Federal law prohibits discrimination against trans students nationwide. Some states have detailed statewide guidelines on the rights of trans students, including:

If it gets tough, reach out for support:

Contact NCTE or an LGBT organization in your area.

Learn more about what your school is required to do at our Know Your Rights page, Transgender and Gender Non-Conforming Students: Your Rights at School.

If your school discriminates against trans students, reach out to these LGBT legal groups for help.

Who's with trans students?

Check out the organizations and prominent individuals who have made strong statements supporting trans students. You can use them in your advocacy with your school. And take a look at the friend-of-the-court briefs filed with the Supreme Court in Gavin Grimm's case here to find statements by leading experts on education, children's health, and many others explaining why supporting trans students is so important.

American Academy of Pediatrics: Transgender youth, "like all children, flourish when they feel supported. Therefore, the [AAP] policy emphasizes a gender-affirmative model of developmentally appropriate care oriented toward understanding and appreciating the gender experience of all youths." The policy recommends "advocacy with school districts, communities, and policymakers to promote acceptance, inclusion and legal protection for all children without fear of harassment, exclusion or bullying because of gender expression."

​American College of Physicians and 17 other major medical organizations: "Access to single-sex facilities that correspond to one's gender identity is a critical aspect of social transition and, thus, successful treatment of gender dysphoria.By contrast, excluding transgender individuals from facilities consistent with their gender identity undermines their treatment, exacerbating the condition; exposes them to stigma and discrimination as well as potential harassment and abuse; harms their physical health by causing them to avoid restroom use; and impairs their social and emotional development, contributing to poorer health outcomes throughout life."

National Parent-Teacher Association: "Educators can and do provide transgender students the inclusive and supportive environment they need-including equal access to restrooms and other essential facilities-to thrive in school and beyond.... These policies have transformed the educational experience of transgender students while-critically-avoiding any disruption or harm to the educational experience of other students."

Nineteen Leading Education Organizations: "We are working to ensure that all students can enjoy a safe and affirming learning environment; have the support of educators, administrators, family members and peers; are affirmed in their gender identity and expression; and are protected by nondiscrimination policies that promote equity and respect for all members of the community."

Numerous school officials around the country: "We have not experienced problems with policies allowing transgender students to access bathrooms or locker rooms in accordance with their gender identity. Nor have we experienced transgender students or any other students attempting to be dishonest or break the rules. To the contrary, our transgender students simply want to be safe while using school facilities."

More Resources from the Department of Education

Most people won't need to use these additional resources from the Department of Education, but here they are just in case they are helpful for your work at your school. Some of these resources could be pulled from the Department of Education's website in the future, but they are still good examples of what discrimination against transgender students includes and how to address it.

Share your story

Share your story of being a trans student or the story of a trans student in your life with NCTE. NCTE can use these stories to help convince policymakers to change policies. In some cases, we might also be able to work with you to get your story into the media.

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Here's how to make your school better for trans students or advocate for yourself or your family. Visit our other action centers here: National Fight Back Action Center | State Action Center Anti-transgender discrimination is illegal-no matter what the Trump administration says.