Monday, September 21, 2020
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NSBA publishes transgender guidelines for schools

The National School Boards Association published last week a 24-page guide entitled 2016 Transgender Students in Schools: Frequently Asked Questions and Answers for Public School Boards and Staff.

Districts around the country, state legislatures, and even the US Department of Education, acting under Title IX, have weighed in on various transgender-related questions, including:

  • Should a school board’s policies prohibit discrimination, harassment, and bullying of transgender students?
  • How should a public school handle a complaint by a transgender student of discrimination, harassment, or bullying?
  • How may a transgender student participate in sports and school activities, including physical education and other extracurricular classes that are separated by sex?

The answers to most questions like this depend on state law or even on rulings by local courts. But there are some prevailing principles discussed by the attorneys at NSBA. For example, with regard to one question, the NSBA advises as follows:

Question: Can a school require a transgender student to use a single occupant restroom/private changing area instead of the group restroom or locker room?

Yes, unless there is a state statute or legal ruling, state department of education regulation, or district policy that prohibits that. School districts should be aware that [the Office of Civil Rights] takes the position that transgender students should have unfettered access to locker rooms and changing rooms consistent with their gender identity. Even though this view does not rise to the level of “law,” it could become an issue in an OCR enforcement action should the district adopt a policy that restricts transgender students to facilities for their birth-assigned gender.

At this point, transgender issues tend to be treated delicately by school districts, and advisably so. School administrators often need to balance the needs of transgender students with the needs of other students and community members, who are predominantly opposed to biological males changing and showering with biological females. They must craft policies and practices that reflect the concerns of their community while balancing the privacy and safety interests of everyone concerned.

There isn’t much clear law on this matter at the federal level, which has left most school districts dealing with transgender questions on a case-by-case basis, rather than adopting overarching policies in any official sense.

Paul Katula is the executive editor of the Voxitatis Research Foundation, which publishes this blog. For more information, see the About page.

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