There is more to the experience of transgender youth than whether or not they can use the proper restroom at school, and ACLU Staff Attorney Jay Kaplan was at the SOGI Education Conference on Feb. 7 to explain that to the teachers, counselors and students in attendance.
Kaplan is part of a workgroup that is crafting a comprehensive model policy for transgender students. He hopes it will be adopted by local school districts in the coming years. “As more and more students come out as transgender, and at earlier ages, this is something that school districts can no longer just ignore,” he said. Districts will also have to have policies for transgender teachers and staff.
The bathroom issue is the one that makes news, and the one that people who do not understand the needs of transgender youth fear the most. “There’s this idea that a male student will dress up like a female just to go into the girls’ restroom. It’s ridiculous,” Kaplan said. “The restroom is there for one reason, and this is all part of proper restroom behavior…Our recommended policy is that students should be able to use restroom facilities in accordance with their gender identity and expression. If any student feels uncomfortable using a communal restroom, they should be afforded the opportunity to use a single user, gender neutral restroom. The fact that a student is transgender, however, does not mean that they should have to use a single user gender neutral restroom.”
A recent decision in Maine concluded that forcing a transgender student to use the staff restroom was discrimination because it singled her out and did not provide her the same level of access to facilities as other students. Michigan is not subject to the Maine court decision, but the decision could provide guidance to Michigan courts when addressing the issue of restroom usage for transgender students.
In Michigan law there is not precedent, however there are several areas where someone being treated unequally may be able to make a case.
There have been cases of workplace discrimination that have been tried under the umbrella of sex discrimination. “The EEOC [Equal Employment Opportunity Commission] said that its sex discrimination, and they are actively looking for cases where someone is discriminated against because they are perceived not to conform with stereotypes for their gender,” Kaplan said.
He added that school districts are subject to the equal protection clause of the Constitution and that Title 9 of the Federal Civil Rights Law also applies to school districts based on sex discrimination. However, it is unclear if local human rights ordinances can be used against school districts that discriminate. In Michigan, a person can be fired for being gay, and apart from cases where sex discrimination may apply, transgender people are not specifically protected.
In schools this does not only apply to students and their restroom usage. Discrimination can occur when teachers or staff jobs are threatened due to their sexual orientation, gender identity or gender expression. It can occur when students are treated differently in sports, bands, contests and dress codes.
In Brighton the issue of gender discrimination came up when a transgender student wanted to be on the girls’ cheerleading squad, but the district wanted her to be on the boys’ squad. The boys’ squad offered less opportunity for competition. The ACLU worked with the parents and the schools to help clarify the situation, though ultimately the teen’s family decided it would be best to focus on studying rather than cheerleading altogether.
“The Michigan Athletic Association has not come out with any policies about transgender kids,” Kaplan said, though he expects that they won’t be able to pass the buck for long.
The Norton Shores school district (near Muskegon) faced a discrimination suit when an FTM student was voted Homecoming King. Administration tried to strip the teen of his title and public backlash, and threats of a suit, forced them to change their stance. “They decided that year to eliminate King and Queen and just call the winners the Homecoming Court, and of course two years later they switched back once the student was out of the district,” Kaplan said. In assisting with that case, the ACLU also learned that the district was forcing that student to room by himself when he traveled with the band for out of town competitions, a situation that could have led to isolation and stigmatization.
The ACLU got involved in discussions with another school district for trying to prevent a transgender student to sit on their chosen side of their gender-divided graduation ceremonies. Ultimately the school allowed the teen to sit on the boys’ side.
“Gender segregated activities that do not recognize nor respect those students who are transgender and or gender non-conforming can be problematic,” Kaplan said.
Dress codes are another issue that districts must be careful with.
“Dress codes can require appropriate attire, but they can’t be gender specific,” he said. “You cannot say that girls can wear earrings but boys can’t. If a transgender boy or gender non-conforming male student wishes to wear a dress, we believe that this is something that could be protected by the First Amendment.”
Another issue that comes up in schools is if they are required to call a transgender person by their birth name or by their chosen name. “The law does not require it either way,” Kaplan said. “But there is nothing in Michigan law that prohibits the school from using a student’s preferred name and/or gender.” This means a school district could include the chosen name and gender of transgender students on their non-official records, such as student IDs, the yearbook, etc.
This also ties into issues of privacy. “If a student is transgender, that is not public information. Transgender status is confidential and should not be freely discussed among staff, other students, the school community or the media, without the expressed authorized permission of the student and his/her parents,” Kaplan stressed.
A school administrator in the workshop remarked that in her district the official records of the transgender students have their birth name, but also their preferred name in parenthesis and that preferred names are used by the staff.
Not all districts are as welcoming however. “We recently were working with one family in the Detroit area who got such pushback from the school district about recognizing their child as transgender, that they moved to California which has policies and practices that are more welcoming of transgender students. It’s a whole other world for them,” Kaplan said.
GLSEN and the National Center for Transgender Equality have created a “Model District Policy on Transgender and Gender Nonconforming Students,” which is available for download at http://www.transequality.org/PDFs/Trans_ModelPolicy_2013.pdf.
The ACLU provides information for serving LGBT students at https://www.aclu.org/lgbt-rights_hiv-aids/library.