Behind legal furor over transgender policy, schools wonder what to do

When a federal judge blocked the Obama administration’s guidelines for transgender rights in public schools this week, he stopped schools from having to follow them – at least for the time being.

But he didn’t change the realities schools face.

Courts will decide if public schools will have to allow transgender students to use the bathroom of their choice – as President Obama claims federal law demands – or if the injunction against his guidelines will stand.

Regardless of what the courts do, however, transgender people are becoming a more visible part of the American social fabric, and schools are having to rethink how to serve the growing number of students who are coming out.

The issue is not as easy as red and blue. Some schools in red states are leading the way on new transgender policies. Some parents in blue states are worried about who qualifies as transgender and whether those students should have access to locker rooms.

The search for a clear set of “best practices” has already begun – and would gain urgency if an appeals court overturns this week’s injunction, as some analysts expect.

The task is fraught with honest sensitivities on both sides, but some patterns are beginning to emerge.

When is a student trans?

For instance, while states have varying requirements about changing gender on official IDs or birth certificates, a growing number of school districts are simply being guided by the student’s wishes.

“Our role is to support and protect, and not decide wherein this child’s gender should lie,” says Carolyn Stone, chair of American School Counseling Association’s Ethics Committee and a professor at the University of North Florida. “Our standard of care for our profession is, you honor how the student identifies.”

The nation’s three largest school districts – in New York, Los Angeles, and Chicago – already direct their schools to generally accept a student’s asserted gender identity. But even smaller districts, such as the Anchorage School District in Alaska, does not require proof of a formal evaluation or a professional analysis of being transgender.

Yet as the Anchorage district notes, being transgender “involves more than a casual declaration of gender identity.” Such a declaration allows administrators and school staff to evaluate the needs of individual students on a case-by-case basis.

On Tuesday, Attorney General Scott Pruitt of Oklahoma – one of the states in the case against the Obama administration – told NPR that the definition of sex is being “redefined to not be biological and anatomical but, rather, an internal sense of identity, which, frankly, could change day to day or week to week.”

For its part, the Washoe County School District, which includes Reno, Nev., only recognizes students who are “consistent, persistent and insistent” about their transgender identity.

“The classic thing that people are worried about, is that the policy is going to be some sort of an excuse for a football player to say he’s feeling feminine today and go into the girls’ locker room,” says Gina Session, the civil rights compliance director for the Washoe County School District.

The district’s new transgender policy, hailed by the Obama administration and many education professionals as a national model, was instituted a year ago as the state reevaluated its procedures to combat bullying.

Supporting kids, no matter what

For those supporting the emerging practices, creating a safe learning environment for some of their most vulnerable students is the ultimate aim.

“It’s the same as what we do to make sure kids are not discriminated against because of race or nationality or ability,” Margo Bellamy, executive director in charge of legal compliance for the Anchorage School District, said last year. During the 2014-2015 school year, she helped 102 students dealing with gender identity issues – “almost 100 more than the district handled in 2008,” the Alaska Dispatch News reported.

Nearly 80 percent of transgender students don’t feel safe at school, according to Trans Student Educational resources, with nearly 60 percent saying they have been harassed at school in the past year, compared with about 30 percent of their peers. Nearly half say they have been physically abused, and 1 in 5 has experienced homelessness after being kicked out of their homes.

“This is absolutely something that we have to do everything in our power to support kids who have been brave enough to reach out to us,” says Professor Stone of the American School Counseling Association.  

The relatively easy part is to get a school’s staff to use the appropriate pronouns. Some districts create a dual file under the student’s preferred name, since it often differs from their legally given name.

And most school districts allow students to wear whatever clothing they choose, as long as it is in line with school policies for the gender with which they identify.

But the issue of athletic involvement, and especially the issue of bathroom and locker room access, has been more difficult.

'It just doesn't feel right'

This month, a group of 51 families from a suburban school district west of Chicago asked a federal judge to temporarily suspend the district’s accommodations to a transgender girl, born a boy. In a meeting last December, six female students gave a statement at a community meeting, saying that it was “unfair to infringe upon the rights of others to accommodate one person.”

Addressing their fellow student, they said, “Although we will never fully understand your personal struggle, please understand that we, too, all are experiencing personal struggles that need to be respected.”

“I know [the student] poses no harm to me, but it just doesn’t feel right knowing someone with male anatomy is in the bathroom with me,” another anonymous student told The Daily Signal, a local investigative news organization. “I have nothing against [her] and would be her friend if I knew her better, but when it comes down to it, I don’t feel right changing in the same room as a transgender student. The locker room is already filled with so much judgment, and I barely feel OK changing in front of my naturally born girl peers.”

It’s a concern that even liberal parents in blue states like New York and California have expressed, as the Monitor reported in May.

But the threat of losing $6 million in federal funds if it did not comply led Palatine-Schaumburg High School District 211 to allow the student to use the girls’ locker room. The student agreed to dress behind newly installed curtains.

The families’ case was bolstered by this week’s ruling in Texas. But the law is currently in a state of flux.

Other federal courts have already agreed with the administration’s claims that transgender students are protected by existing law. But the US Supreme Court has temporarily blocked a federal appeals ruling that would have given a transgender boy the right to use the boys’ bathroom in a school district in Virginia. The high court is weighing whether to hear the case this fall.

Whatever happens, some educators say the effort to institute new “best practices” will continue to expand across the country.

Says Stone: “We’re seeing more and more students willing to come forward.”