Season 3: Episode 8: Transgender Students and Title IX

To finish up our Title IX series, Ben Chojnacki joins Lisa Woloszynek and Miriam Pearlmutter to discuss school districts’ obligations towards transgender students. Over the last several years, some school districts across the country have found themselves embroiled in local and even national controversies over locker room facilities, preferred names, and overnight field trips. In this episode, we consider a historical perspective on these hot button issues: What guidance did the Office for Civil Rights issue in 2016? Why was it considered controversial and why was it later withdrawn? How are school districts addressing the needs of transgender students in 2019 while waiting for further guidance from federal agencies?

Join us for a closer look at this cutting edge topic, including an exploration of recent case law and current regulations.

View Podcast Transcript


Lisa: Welcome back to Class Act: Updates in Education Law, I’m Lisa.

Miriam: I’m Miriam. We are attorneys at Walter | Haverfield in Cleveland, Ohio. Every few weeks we get here together to talk about education law and the new developments and how those impact school districts whether you are board members, administrators, teachers, really anyone who works in education.

Lisa: In our previous several episodes we have started talking about Title IX which is a law with many regulations and considerable guidance relating to discrimination based on sex in our universities and K–12 school districts. Today, we’re going to talk about transgender issues which also come to court and come to the media by way of Title IX complaints. To talk about that today with us is Ben Chojnacki.

Miriam: Thanks for joining us, again.

Lisa: Thank for joining us.

Ben: Thanks for having me.

Miriam: Ben is an attorney at Walter | Haverfield who advises clients on Title IX compliance issues.

Ben: It’s great to be back.

Lisa: Why don’t we get started by explaining what transgender students how that correlates with Title IX and plays into the landscape we’ve talked about in previous episodes.

Ben: Sure. As we’ve discussed, Title IX is a law that prohibits discrimination on the basis of sex in our country’s educational institutions. This is colleges, schools K-12, whatever the case may be. Even though back in the ’70s when Title IX was first enacted the law was understood to protect women from discrimination on the basis of their sex, the law has been expanded over the decades and now it protects women from harassment in schools. Not only does it relate to whether it’s females or males but it also persons who identify as LGBTQ they are also protected to the extent that OCR is going to investigate claims that they were harassed based on their nonconformity to traditional masculine or feminine stereotypes. That’s typically referred to the sex stereotyping investigation claim. Really, in May of 2016 the Office of Civil Rights for the Department of Education issued a “Dear Colleague” letter indicating that discrimination against students who identified as transgender, non- binary, whether at the college level or the K-12 level would also be some form of discrimination on the basis of sex.

Miriam: Just before we jump into the May 2016 “Dear Colleagu” letter I just want to clarify for the audience that transgender students do not identify with the gender they were assigned to at birth. A transgender student born with male organs, for example, may identify as a female, and transgender students born with female organs may identify as males. That’s the terminology that we’ll be using today in the podcast. In May of 2016, this is towards the end of the Obama administration the Office for Civil Rights issued guidance which was then very controversial just as we’ve seen with the sexual violence guidelines that were issued in May of 2011 and we talked about that in a previous episode. The transgender guidance that was issued in 2016 was also quite controversial.

Lisa: Almost I would say exponentially in that you had states getting in the mix legally filing lawsuits about this guidance, trying to challenge whether OCR could even issue this type of guidance. There was lots of legal arguments out there that I believe we’ve touched on in some previous episodes.

Miriam: Yes. In short, I think just to summarize the controversy here, OCR directed school districts to allow transgender students to use bathrooms and locker rooms of the sex that they identified with regardless of what gender they were assigned at birth and that became controversial not only for school districts but for communities and for states.

Lisa: Right. Basically, OCR was interpreting the term of sex to also encompass transgender students even though that’s not explicit in the law somewhere.

Miriam: I think that many people saw this as too much as taking Title IX and just expanding it beyond what they were personally comfortable with. I think that this was exacerbated by a lack of notice and comment. There was no opportunity for the public to weigh in on this and very often when the public has no say the public gets angry, the public gets upset.

Lisa: I think that was a key argument floating out there that OCR was overstepping its bounds in really putting out fairly extreme guidance that many felt was much more appropriate to end up in law for clarification, in our regulations, in our statutes as opposed to OCR just saying in guidance this is what you need to do.

Miriam: At the same time as those guidelines were issued there were some transgender cases coming up through the courts and there was a famous one that we touched upon in season one of our podcast, that was G.G. v. Gloucester. We previously discussed it and the Supreme Court was going to look at it, the Supreme Court had accepted this case where a student who identified as transgender was unhappy about the school district’s refusal to allow that student to use the bathroom that he was more comfortable with.

Lisa: That’s probably a good example of where this issue is out in the media the most about whether or not a public entity does need to honor that request from a transgender student and there’s been lots of arguments out there about privacy and things like that. I feel like that’s the one area that comes up most frequently as being controversial because it impacts other students as opposed to whether or not you just call an individual by their preferred name versus their birth name.

Miriam: I’ve heard that too. I’ve heard some controversy about whether school districts have to have their employees call students by preferred name or preferred nickname. I think that’s also an area of some controversy. In any case, the Supreme Court did not end up reviewing that Gloucester case, taking a look at that Gloucester case and that’s because while everything was pending the administration changed so. We had a change in administration after the November 2016 election.

Lisa: We talked about in previous episodes about OCR and their stance on other areas such as the sexual violence guidance, we have a new administration that takes a different stance and ends up withdrawing guidance that it had put out.

Miriam: Ben is that right? The Trump administration has rescinded the 2016 guidance but I don’t think that there’s any new guidance that has been suggested yet.

Ben: In terms of nomenclature I’m not certain that rescind is the word withdrawn is the language of the– In February of 2017 the Office of Civil Rights under the current administration withdrew the guidance from the previous administration on discrimination relative to individuals who identify as transgender.

Miriam: Now, Lisa, as far as I know, and I think that the Office for Civil Rights did emphasize this in June of 2017. Transgender students are still protected by the anti-harassment and anti-bullying regulations that apply to all students.

Lisa: Yes. I believe that the documents that were issued by OCR to do the withdraw even went as far as to really highlight that that aspect is still in play and districts need to be aware of it and address that as it comes up.

Miriam: Even if the Office for Civil Rights will not require school districts to allow transgender students to use the bathroom that they would like to use or require a school district to have a certain policy about nicknames and so on, the Office for Civil Rights will require school districts to protect transgender students from harassment and bullying based on their transgender status or sex. Schools should respond to bullying based on sex immediately and I would say proactively and follow their detailed policies regardless of whether the victim is transgender or not. Just because we have a new administration now and just because some of the guidance has been withdrawn that does not mean transgender students are without protection in our schools.

Lisa: Right. I think it’s really important we dive into the nuances less a little bit and point out that you still have jurisdictional pieces that at play certainly in the 6th Circuit. We have some cases that are relevant. I think Ben you do a lot of work at a more local level too where there may be some ordinances and laws that are passed that districts also need to be aware of in making their decisions of what they do as issues come up. Let’s dive into what some of that looks like.

Miriam: First, in Ohio, we are bound by the Highland Local School District case which bars districts from discriminating based on transgender status. If you are listening to this podcast in your school district in Ohio, your school district may not discriminate based on transgender status, and you should be allowing students to use the bathroom of their choice based on that case law.

Lisa: Right. In other states, you may have similar circuit court decisions that guide one way or the other, or you may have expressed law in your state that defines that one way or another, that may actually explicitly include transgender students are protected under your state non-discrimination law.

Miriam: Right. Even smaller than state, there are localities that will issue their own ordinances. Is that right, Ben?

Ben: Correct. There’s an overarching regulatory scheme that exists independent from the Title XI concerns that we’ve been talking about in other contexts, but generally, yes. What you’re dealing with is a school district, the university is going to be bound by a number of federal laws. They’re going to be bound by a number of state laws, then they’re going to be bound by local law as well. At the federal and state level in Ohio generally, that is a– Well, you guys have touched on those issues but at the local level, there’s been a concerted effort to address some of the ambiguities dealing with what sex means in the eyes of different statutes.Typically in the context of Title VII which is not Title XI, but Title VII is the Civil Rights Act which prohibits discrimination …

Miriam: In the employment context.

Ben: In the employment context. Public accommodations is another big area where Title VII applies. What you have is a line of jurisprudence that speaks to what sex means. There’s different courts across the country that have different idea of what sex means. In the Sixth Circuit, there’s two different interpretations, there’s two different rationales for how sex can be interpreted as a term to apply to whether it’s gender identity, gender expression, sexual orientation. There’s the general which we touched on briefly, sex stereotyping context where you take an action against someone or in favor or in furtherance of someone in some way, usually in the employment context…

Miriam: Here it would be in the education context.

Ben: Here, it would be in the education context. Where you take that action based on what you believe their expressed sex should be, and you discriminate them or you do something to deprive them of a benefit based on that assumption.

Miriam: Girls act this way, boys act this way, and if you’re a girl and you’re acting like a boy, then I’m going to discriminate against you for that.

Ben: Correct. In that context, the Sixth Circuit says that type of discrimination is prohibited.

Lisa: Sorry to interrupt you but I think also another distinction for our districts, often you’re talking about students but it’s important to understand this can also be at play with your employees.

Miriam: Absolutely, thank you.

Ben: 100%, that is 100% accurate. The other content and the more novel one and there’s a recent Sixth Circuit case that speaks to this issue that’s currently before the United States Supreme Court. It’s been accepted for CCRI. The issue is it arises out of a funeral home case where an individual was biologically male, at a certain point in time that an individual made the decision to start expressing as a female-

Miriam: I think I read about this case.

Ben: -and was terminated. The individual was terminated. The Sixth Circuit held that the sex stereotyping case or that type of discrimination, the employment context is prohibited which is consistent with the prior interpretations as it relates to, I’m trying to use the appropriate term here other than who you or how you express yourself here, I’m not quite sure of the term….

Miriam: So wait. What term?

Ben: So the sex stereotyping context, the case basically is novel because it not only recognizes sex stereotyping as a protection against discrimination but it also identififying transgender as a type of prohibition. Your expression as a female when you’re biologically male is a determination on the basis of sex as well. That type of discrimination is prohibited under the funeral homes case. Those cases all apply in the context of the Civil Rights Act. Separately, the major issue and the issue that local governments are typically grappling with, and this is the city of, the village of, the county of, they have been grappling with the idea that in the absence of a legislative change to federal or state law that incorporates a term other than sex, something that says sexual orientation, gender identity, gender expression, in the absence of language incorporating those terms, then individuals who identify of a gender different than what they’re biologically assigned at birth or different than what they choose to express or they have a different sexual orientation, those persons are not protected fully in the eyes of the law, in the absence of a statute giving them that protection. What certain local governments are starting to do is create laws that prohibit discrimination on the basis of sex, but also sexual orientation, sexual identity, gender identity, gender expression. Those types of regulations if they are passed by your local government as a school district, you would be bound to those as well.

Lisa: It’s really important that our districts know if your city or village or even the county that you’re located in has included those types of terms in its anti-discrimination laws.

Ben: Correct. Locally, where we practice in Northeast Ohio for part of our practice, Cuyahoga county is one of the most populated counties in the state. They have passed legislation that prohibits discrimination on the basis of sex, gender identity, gender expression. If your school district operating in Cuyahoga county, you might not be aware of the fact that if because you’re only aware of federal and state law, that there’s a local law that prohibits discrimination on the basis of gender identity, gender expression. Those types of considerations need to be accounted for as a school district in dealing with their employees and separately dealing with their students.

Miriam: Excellent. You just touched upon the funeral home case and that’s an example of a case that the Supreme Court has accepted for review.

Ben: Correct. There’s a Circuit split on that issue but…

Miriam: Before we finish, maybe talk about some takeaways that school districts should be looking at. Definitely be aware of your federal and your state law. Like Ben said, even the specific county that you’re in or the specific city may have its own ordinances related to protections for transgender individuals both in employment and in education.

Lisa: Even more globally than that, make sure that you are still having explicit policies about bullying and harassment and what those procedures are and that you’re applying those equally to any complaints made by a transgender student and moving through that process.

Miriam: Absolutely. The school district should have anti-bullying programs and should be implementing them to protect, to teach other students how to make sure kids that are different in any way, whether it’s race, gender, identity, religion, are protected from harassment and bullying in schools.

Lisa: There’s also some guidance out there that while not law and has to be followed, does give some good problem-solving types of strategies to work through some issues that come up. For example, OCR had a Q&A type of document that I think is still accessible for districts to at least reference.

Miriam: In May of 2016 when the controversial guidance, the “Dear Colleague” letter was issued, the Office for Civil Rights also issued a companion document. It was called, “Examples of Policies and Emerging Practices for Supporting Transgender Students”. This talked about some common issues that arise whether it’s locker rooms or the Washington eighth-grade field trip and whose roommate’s with whom. It had some creative solutions and examples of what school districts around the country are doing. This document is still up, it’s still relevant, and it’s still a good resource for school districts to look at.

Lisa: I also want to caution districts too that with this issue, there are a lot of other like documents, blogs, newsletters out there, and just be really cautious in your own Google searches and what you’re looking at because it may not apply to your state or your local area and may indicate that you have some obligations that you don’t or may indicate that you don’t have some obligations that you do, so certainly helping navigate some of those nuanced areas with legal counsels is going to be really important.

Miriam: Very important. The National School Boards Association has guidance on its website and general suggestions for handling tricky situations again like field trip accommodations, confidentiality issues. I think those are all really interesting and that’s a good resource for school districts to take a look at.

Lisa: Ben, have you seen this come up with athletics, sports too in universities or school districts?

Ben: A little bit, yes. The challenge in the athletics context is that you don’t see too much pushback when you have a female wanting to participate in a male sport. The contrary to that is much more difficult. Wrestling is the most common example and then, there’s field hockey as well where you’re seeing disputes over what is appropriate and what is permitted in the athletic context. I think the big picture whether it’s athletics, whether it’s your students or whether it’s your employees that the law in this area is still frankly clear as mud.

You’re not going to have a clear answer if you google anything really because it is changing as cultures mores change and as the students generally, their interests, needs and ability to express themselves becomes more welcome and accommodated. The law takes time to catch up. I think we’re dealing in the current environment, particularly at the school district level, with persons who are trying to find themselves and the law wants to account for that, but at the same time, the law moves slow and the law is relatively conservative. There’s a balancing act that the school district has to weigh and doing that in a manner that respects the rights of the person versus the guidance that you have under the law and what other people might or might not feel that law should or should not say requires careful consideration with consultation with a lawyer.

Lisa: Right. There’s also some places you can find specific state guidance on that, for example, in Ohio, the Ohio High School Athletic Association has issued some specifics about when certain genders can and cannot participate in a sport of a different gender.

Miriam: As far as I understand, there are many high school sports that are governed by a State’s athletic association and that athletic association will guide school districts in this area. Ohio High School Athletic Association has a policy about transgender students, and it takes into account hormone treatment, muscle mass, bone structure, and medical evidence. That should be your first area to look at to explore when the situation comes up in your district.

Lisa: Absolutely.

Miriam: Thank you so much, Ben. Thank you for coming. Thank you for talking about all of these issues with us today. It was really fabulous. I really enjoyed it. I hope you did too and please rate us highly on iTunes, Stitcher or wherever you get your podcast. We love getting your e-mails and letters. Keep those coming. Thank you!

Ben: Thank you.