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Title IX Turnaround Leaves Questions for States, Local Agencies

Amy Donovan 2/21/2018
Amy Donovan

On February 13, 2018, a spokeswoman for the U.S. Department of Education confirmed that the department is no longer investigating civil rights complaints from transgender students barred from using bathrooms that conform with their gender identity.

This statement was the latest in a series of announcements that signal the department’s about-face from much of the Title IX guidance issued and enforcement efforts pursued during the Obama administration. One year ago, the Trump administration rescinded federal protections for transgender students that allowed them to use bathrooms in accordance with their gender identity.

In the absence of federal guidance and enforcement, the question of how to accommodate transgender students has returned to the states, where the answers are very different depending on where you live. Court judgments and legal settlements are also raising consideration of how transgender policies and their enforcement carry risk for local schools and other agencies.

In California, state law has provided that a transgender student must be able to “use facilities consistent with his or her gender identity, irrespective of the gender listed on the pupil’s records,” since 2014.

In 2017, New Jersey enacted legislation requiring the Commissioner of Education to develop and distribute guidelines concerning transgender students. Under the law, these guidelines are to include guidance on the use of restrooms and locker rooms, including not requiring a transgender student to use a restroom or locker room that conflicts with the student’s gender identity, and providing reasonable alternative arrangements if needed to ensure a student’s safety and comfort.

Other states are taking a different approach. A bill recently introduced in South Dakota (H.B. 1296) would require each school board to establish its own policy regarding the use of bathrooms and locker rooms by a transgender person.

On the other end of the spectrum, Illinois, Kansas, Minnesota, Tennessee, Texas, and New York are considering bills which would require public schools to designate by biological sex and restrict usage of multi-user student restrooms, locker rooms, changing rooms and/or shower room facilities. Similar legislation was considered in 2017 but failed in Virginia, Arkansas, Kentucky, Missouri, Montana, and South Dakota.

Experiences of schools throughout the country do shed some light on the legal risks involved. School districts that do not accommodate transgender students may face lawsuits. In 2014, a court in Maine awarded the family of a transgender teen $75,000 in a discrimination lawsuit against a school district that required the teen use a staff restroom rather than a student one. In 2017, a Pennsylvania school district settled a federal suit brought by three transgender students over their use of restrooms. Most recently, Wisconsin’s Kenosha Unified School District agreed to pay an $800,000 settlement in a case brought by a transgender student who claimed that officials at his former high school monitored his bathroom use, forbade him from running for prom king, and repeatedly mis-gendered him.

In the absence of federal guidance on transgender student use of single-sex facilities, school districts must look to their states for guidance. In the absence of state guidance, school districts would do well to consider the liability implications of their policies.