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Transgender and Gender Nonconforming Students: Advocate for Best Practices
Carolyn Stone, Ed.D.
Tuesday September 01, 2015
by: Carolyn Stone, Ed.D.

Section: Inside Insight

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A middle school student who was in the process of transitioning from male to female was told by school officials that she could not wear feminine attire and was sent home every time she came to school wearing makeup, hair adornments and /or dresses. Her parents sued. How did the courts rule?

Federal, state, constitutional and case law have all been successfully applied to protect transgender students. Title IX of the Education Amendment Acts of 1972 prohibits discrimination based on sex in education programs and activities receiving federal funding. Students do not leave their free speech rights at the schoolhouse door. Under the First Amendment, educators cannot censor a student’s speech or expression without a compelling reason to do so, such as the speech will create a substantial disruption to the educational process.

A growing body of judicial decisions such as Doe v. Yunits (2000) applied state antidiscrimination statutes to protect transgender youth. The Doe case involved a Massachusetts middle-school student who transitioned from male to female. Doe was continually disciplined and sent home for wearing feminine clothing and makeup. Her school attendance was predicated on the principal approving her dress every day. Doe missed so many days of school she failed the grade. The court ordered the school to permit the student to wear any clothing allowed of any other girl in the school.

A middle-school student who transitioned from male to female during her seventh-grade year was supported by the school and her parents to use the faculty women’s restroom. The school was discreet in addressing her request, but rumors flew and a vocal critic coached his son to come to school and demand to be allowed to use the women’s restroom. Did the school act according to best practice by allowing the transitioned student to use the women’s restroom? Must the school allow the protesting student to use the women’s restroom?

Transgender students must be allowed to have equal access to school facilities and to be treated according to their gender identity. There will be situations where students, transgender or not, will be uncomfortable using shared restroom facilities, which is something administrators must weigh when trying to create a safe and included environment for transgender students. The school’s response should be to provide the transgender student with a nonstigmatizing option. The Gay, Lesbian, Straight Educators Network (GLSEN) Model District Policy on Transgender and Nonconforming Students has a guide for model behavior educators can use when working through ways to support transgender youth. GLSEN recommends schools assess their existing facilities and convert those that are designed for single users to be more gender-neutral. In this scenario, the school worked responsibly with the parents and transgender student. The school does not have to accommodate the protesting student.
Cedric is a third-grader who expresses himself as a female. School officials have talked to Cedric’s parents about his academic issues but not the fact that they suspect the root of Cedric’s struggles stem in part from grappling with gender identity. It is apparent Cedric’s parents are not aware of his nonconforming gender expressions and the connection this focus is having on his school success. The educators want to help Cedric but are uncertain if they should say anything about his gender expressions to his parents.

Families and schools working together is a powerful alliance for a safe, respectful school for children’s well-being. Parents of elementary-age children, ideally and typically approach educators for support in their child’s transition or nonconforming gender expression. However, when parents are not aware of or seem not to be addressing a struggling child’s need for support, the educators must decide if the difficulty the child is experiencing tips the balance in favor of approaching parents about the suspected underlying reasons for their child’s struggles.

When a student is in middle school or high school, the decision is easier as the students can be consulted and can shed light on many of the issues surrounding parental notification, such as how safe they feel in involving their parents. Even with middle- and high-school students, assessing the student’s developmental level is a crucial consideration and one very much in the forefront when making decisions about an elementary-school child. Err on the side of caution when struggling for an answer as to whether or not to inform parents. There should be an overriding and compelling reason to do so. Avoiding the wrath of parents who believe they should have been told is not a compelling reason. It can be dangerous for a gay or lesbian child to be outed to their parents, and, likewise, transgender students can also be vulnerable to homelessness, rejection or abuse. Proceed with great caution and, if possible, student involvement.

Ronaldo is a male student who wears feminine attire. Despite educators’ efforts to protect him, he is taunted daily. The school has tried many approaches: walking in the same hall as he goes to class to keep a sharp eye on his welfare, making a special schedule with teachers who have a no tolerance for bullying attitude and who will affirm Ronaldo and having him work as a lunchtime office aide so he can eat with his peers who are also office aides and appear to enjoy Ronaldo. These good-faith efforts have gone a long way to help Ronaldo feel safe, but in this huge school of 1,700 students, incidents still happen. The district has offered Ronaldo a special assignment to the school of the arts where peers celebrate student differences. Science and engineering, not arts, are Ronaldo’s focus, but he agrees to go as he is worn down from the daily insults.

All educators will agree the victim should not be punished because of the difficulties of stopping the perpetrators. Transferring students should not be the desired solution, unless it’s the student’s preferred solution or a last resort after many other efforts have been tried. Ronaldo and his parents have to agree to the transfer without being coerced by educators. Ronaldo has to be supported with the same academic opportunities he had in his former school.

Your state but not your school district has an anti-bullying policy, but the law doesn’t speak to transgender and gender nonconforming studens as protected students. You know at least two of your students who would be better protected with a stronger state and district policy, but you are told the state policy covers what is needed. You think it would be helpful if your district has an anti-bullying policy. Are you right? 

All states have an anti-bullying law, something unheard of just two decades ago.  The progress made in anti-bullying legislation is a direct result of the correlation between bullying and school success. In July 2015, GLSEN released the study From Statehouse to Schoolhouse: Anti-Bullying Policy Efforts in U.S. States and School Districts. State anti-bullying laws appear to influence policy at the local level. From 2008¬–2011, GLSEN assessed the existence of anti-bullying policies in all 13,181 public school districts from all 50 states and the District of Columbia. Policies existed for 9,296 districts (70.5 percent). Of the 70.5 percent of U.S. school districts with anti-bullying policies, only 14.1 percent enumerated protections for students based upon their gender identity and/or gender expression. Only 3 percent of district policies included all three elements recommended by GLSEN: LGBT enumeration, professional development requirements and accountability stipulations.

The school counselor in this scenario was right in advocating for a stronger state and district policy providing explicit protection to students based on sexual orientation, gender identity and gender expression. The National School Climate Survey by GLSEN (2014) suggest that LGBT students who believe their schools have LGBT-inclusive policies experience better school climates, feel protected and are more likely to report incidents of bullying when they occur.

Sam, formerly Samantha, is a middle-school student who transitioned from his female birth assignment to Sam with the full support of his parents and school staff. Sam wants to wipe his educational records clean of ever having been a female. Can the school comply?

Privacy of the student’s educational records will be a key component to a successful transition. Students should not live in fear that they will be identified. Educational records as defined by FERPA are legal documents and must have a student’s legal name and gender. Therefore, a court order is needed to change a student’s name and gender on these records. For purposes of standardized testing and other situations where educators have to report a legal gender and legal name, GLSEN suggests districts adopt policies and practices above and beyond the usual compliance to ensure this information is protected.

On documents where the school is not legally required to use a student’s legal name and gender, it is best practice to use the name and gender preferred by the student. For example, Sam’s identification badge is not a legal document and can be changed from Samantha to Sam. A court order isn’t needed to address a student by a name and pronoun that matches his or her gender identity even if it does not match his or her educational record.

A 15 year old wants to transition from female to male at school and is adamant that he believes his parents will reject him if they know. Should the school support him to transition in isolation of parental involvement with the full knowledge that his parents would object?

Every educator can appreciate how critically important parental support is for transitioning students. The hard part for educators is when they know that gender nonconforming students want desperately to be able to express their deeply held sense of their own gender but don’t feel emotionally or physically safe letting their parents know. Like so many issues we face as school counselors, this one is context-dependent without a hard and fast answer, but there is some guidance.

What we do know through laws applied in court cases is that transgender and gender-nonconforming students have the right to express their gender identity openly at school. What is not clear is how educators apply parental rights to be the guiding voice in their children’s lives when a student is in the throes of this complex issue and wants to negotiate it without parental involvement. The context of this scenario is that the student placed the educators on notice that he might be in harm’s way if his parents are called. A skilled educator such as the school counselor could work with the student to uncover any additional information that might shed light on his fear of involving his parents and to help the student consider possible scenarios and implications if his parents accidentally learn of his transition. This conversation should not discourage the student from moving forward but help him weigh the possible good and bad consequences of not telling his parents and possibly serve to help him become empowered so he can involve his parents.

A strong secondary goal is to help the student’s family accept his gender identity. The publication “Schools in Transition: A Guide for Supporting Transgender Students in K-12 Schools” helps educators better serve students who decide to transition alone with best practices such as using the student’s legal name and corresponding pronoun when contacting parents. 

Educators who help student transition in school in absence of parental involvement will likely bring on the wrath of parents if they learn the school was in “collusion” with their child. There could be a threat of a lawsuit, although no such lawsuit has currently been filed. This is a risk educators have to strongly consider taking when students are suffering, know conclusively they must transition and express fear of harm should parents know. Educators cannot practice risk-free, but they must weigh the student’s greater good against potential fallout for the district. Parents’ negative reaction might come from their fear that their child will be mistreated or have a difficult life – fears educators can help allay.

The tug of war for educators is that we would not want to place students in harm’s way, nor should we prevent them from expressing their gender identity. Proceed with as many facts as you can and with as much guidance as the student is developmentally able to give you.

Schools are working to reduce the stigmatization of transgender and gender-nonconforming students and supporting them to enjoy their days at school comfortable in their identified gender. Progress has been made, but the courts will continue to build case law that gives educators guidance in this area. Keep up to date on changes, as the above scenarios are not intended to be the final word or legal advice. We are all paddling this canoe as we build it.

Carolyn Stone, Ed.D., is a professor at the University of North Florida and chair of ASCA’s Ethics Committee. She can be reached at cstone@unf.edu.