How Should School Districts Treat Transgender Students?



March 26, 2018

What should school districts do about high school students taking standardized tests when their name and gender do not match their ID? How should schools handle children as young as five who present as transgender? Do you need parental permission to allow a student to transition?
 
These were some of the questions that educators attending a workshop on the “Legal Rights of Transgender and Non-Conforming Students,” had for expert Lois A. Gordon, an attorney and adjunct professor at Manhattanville College. The workshop was offered by the Center for Educational Leadership at Putnam | Northern Westchester BOCES on March 20.
 
“Let’s see what legal framework we can lean on,” said Gordon. She reviewed the landmark federal laws that prohibit discrimination in public institutions, most notably Title VII of the Civil Rights Act of 1964 and Title IX of the Education Amendments of 1972.
 
“These prohibit discrimination on the basis of sex as defined as the gender assigned at birth,” said Gordon. “Gender transition—an identity shift, not surgery—was simply not part of the conversation and is not specified in these documents.” 
 
Federal protection for transgender students has been as erratic as it has been for service people.
 
In 2016, President Obama issued what’s known as a “Guidance Document.”  The directive— signed by Justice and Education department officials—told every public-school district in the country to allow transgender students to use the bathrooms that match their gender identity.
 
It was pulled by President Trump in February 2017. Just last month, Gordon said, the Office for Civil Rights at the Department of Education stated it will not investigate any claims of trans students with regard to bathrooms.
 
“The Federal government is out of the business of protecting trans students and their rights,” said Gordon. “It leaves it up to the states. New York State is committed to protecting the rights of transgender students under DASA.”
 
New York State’s Dignity for All Students Act (DASA), signed into law in 2010, seeks to provide students with a safe and supportive environment free from discrimination, intimidation, taunting, harassment, and bullying. It was amended in 2013 to include gender identity under its specified categories.  
 
“The whole idea is to create a safe environment in which the child can learn,” said Gordon.
 
Class discussion was guided by the specific circumstances the educators were facing.
 
One principal shared the experience of supporting a student who was transitioning, only to discover that the parents did not know about the teen’s transition.  The principal made the discovery at an awards ceremony when the student was called up by her new name.
 
“Some transgender students may not want their parents to know about their transgender status,” said Gordon. “These situations require schools to balance the goal of supporting the student with the requirement that parents be kept informed about their children. The paramount consideration in such situations is the health and safety of the student.”
 
An assistant superintendent reported that using “they” has been an issue, referring to a transgender person requesting the pronouns “they,” “them” and “their."
 
“Teachers tell me that they want to say ‘they’ but it makes them look like an idiot,” he said. “What would DASA find?”
 
“DASA requires intent,” answered Gordon. “If a teacher is not using the requested pronoun out of confusion, rather than motived by malice” it should not be an issue.
 
As for the thorny question of what to do when young child wants to transition but the parents are not on board?
 
“I am not here to tell your district and its attorney how to handle this,” said Gordon. “But there are instances where the state overrides parental concerns. Think of vaccines.”
 
The practical point Gordon left with the educators was this:  Districts need a plan.
 
“What do we do when we become aware of a gender nonconforming student in our schools,” she posited to the class. “How do we handle the record? When should we involve the parents? Who is the best possible team to work on behalf of the student—would it be the district’s social workers and psychologists? The child’s teacher? A community member?”
 
“Make a plan,” said Gordon. “Don’t start from scratch each time. Be proactive. Be prepared.”