Caution Suggested for Schools When Dealing with Issues Involving Transgender Students

School administrators today are challenged in creating policies and responding to an array of issues that few people would have anticipated as little as five years ago. Consider the challenge of dealing with transgender students.

Transgender is the term that legally describes students whose current gender identities are different from their assigned sex at birth. Although the number of cases involving transgender students is still low, our education law team receives a steady stream of inquiries from schools that are faced with an array of sensitive policy-making decisions around this topic.

The highly charged issue is characterized by strong emotions on both sides. Consider the student who was born male but who is now transitioning to become a female. The student and his parents insist he should be able to use the girls' restroom. Legally, the United States Department of Education's Office of Civil Rights has opined that this student has equal rights and access to the girls' restroom and locker room. But imagine the reaction of the other parents who argue that the student, who still has male body parts and is, biologically speaking, still a boy, should, therefore, continue to use the boys' restrooms and changing facilities.

Such issues are complex enough when encountered in the adult workforce, especially since there is currently no objective legal definition as to when someone has officially transitioned. They are complicated at the high school level by the high emotions that characterize most teens who are exploring sexuality issues.

The transgender debate has received so much attention that it forced the Ohio High School Athletic Association (OHSAA) to adopt a formal policy specific to it this past November. The issue has major implications for sports teams which could benefit from or be accused of cheating by having a transitioned boy on the girls' team, for example.

The OHSAA policy states that transgender student athletes should have equal opportunity to participate in sports. It further reports that policies governing sports should be based on sound medical knowledge and scientific validity and developed in a way that preserves the medical privacy of transgender students. Under the policy, all requests from parents indicating a transgender student's desire to participate on a sports team that is inconsistent with that student's gender at birth must be submitted to the school in writing and approved by the Commissioner's Office. In order to qualify, students must have completed a minimum period of hormone treatments and be able to prove by way of "sound medical evidence" that their physical characteristics, including muscle mass, do not dramatically differ from other teammates. All medical treatments must be monitored by a physician and regularly reviewed by the Commissioner's Office. There is also an appeals process parents can follow if they disagree with the school's decision.

But the headaches caused by the issue of transgender students don't end on the sports field.

Since the issue is still relatively new, most school districts are handling these types of situations on-the-fly and on a case-by-case basis. Yet, it is important that policies be created and enforced consistently and uniformly so as to minimize negative media publicity and parent outrage, as well as the risk for discrimination or harassment lawsuits. As can be easily imagined, transgender students can often be the target of bullying by other students. As is true of any other case involving bullying, the school needs to respond quickly and consistently as part of its overall zero-tolerance policy.

It is difficult to address all of the potential discrimination issues in this one article. An especially sensitive issue involves uniform policies and dress codes. Consider the case of a boy wearing nail polish to school. Can he be disciplined by the school for such behavior? It depends on what's written in the student handbook. Many schools have policies that generically "prohibit dress that interferes with or disrupts the educational environment." But if nail polish is acceptable for some students and is not specifically prohibited by school policy, it would be ill-advised to proceed with any punitive action in this case. Remember that, even if an action appears unconventional and highly controversial, schools need to be careful in applying rules uniformly.

And how should name changes be handled? If a student who was called James all his life now wants to be called Jane, do you allow it or not? Currently, Ohio law does not expressly address this issue for schools. Thus, there is no one simple answer, because it all depends on what has been allowed in the past. If the school has allowed other kids to change their names--first or last name-- for any reason, it is risky to deny a similar request from a transgender student. Other tricky name change issues involve students who have graduated and wish to have official student records changed to reflect a new name that matches their gender identity. Whether a district grants or denies these requests hinges on a number of factors, including past practice and whether the former student has legally changed his/her name. If a district elects not to allow a change to the former student's records, it can still assist a former transgender student by providing a letter or other documentation that the name on the student's transcript matches the name he/she was using while in high school.

In our constantly evolving world, it's difficult for school districts to always anticipate the next big challenge. But the one rule you can rely on to help minimize risk is be consistent.