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Transgender students are a small and often invisible minority. Most of them want to stay that way so they can avoid being teased or bullied and facing discrimination on the basis that they are different. But even if you have no transgender students in your school, what bathroom they use has become a political issue and you should be up to date and prepared to handle the issue if it comes up.
Studies show that around 300,000 teenagers in the United States identify as transgender. And while there are no current numbers, many of them self-identify at an even younger age. The path for every transgender student is different. Most will start dressing to match their new gender identity. Transgender girls may start wearing dresses, a new hairstyle, and make-up. Boys will cut their hair and start wearing boys’ clothing. Many will change their names. Some—but not all—will take puberty-blocking drugs or other hormones. Others will take steps to change legal documents, such as birth certificates, to reflect their new gender. Some will tell their parents. Some will not. Some will want to play sports on a team that matches their gender identity; most will not. And if their friends and fellow students know them only by their new identity, many will want to keep their birth identity a secret. Virtually all of them,however, will want to use school bathrooms that match their new gender identity.
Unfortunately, the issue of transgender bathroom usage, particularly in schools, has become a political hot potato with the federal government, some states, and Title IX on one side, courts somewhere in the middle, and many states and parents on the other side. At the moment, it is not clear whether Title IX requires that transgender students be allowed to use a bathroom that matches their gender identity, but both the proposed Title IX regulations and trending case law suggest that if it is not required right now, it soon will be. Seventeen states[1] and the District of Colombia already require schools to allow transgender students to use restrooms matching their gender identity. On the other hand, in twenty states,[2] a District Court has barred enforcement of Title IX regulations and executive orders with respect to bathroom usage by transgender students. That means that schools in those states cannot be required to allow transgender students to use a bathroom that matches their gender identity, but they are presumably allowed to do so if they choose.
If your school is in the first group of states, you must allow transgender students to use those bathrooms. Since these requirements have been in place for several years, you probably already do. For those of you in other states, there is currently no law that prohibits schools from allowing transgender students to use gender-conforming bathrooms. Gender-conforming bathrooms can include single-use gender-neutral bathrooms, but in states that require that transgender students be allowed to use bathrooms matching their gender identity, they cannot be required to use single-use restrooms unless those are the only restrooms available to the general student population. In other words, requiring students to use bathrooms that are separate from their cisgender classmates is discriminatory and violates those state laws.
Gender Identity Considerations
Many would have you believe that transgender girls (who were boys at birth) should not be allowed in the girls’ bathroom because it is not safe for the cisgender girls who are using it at the same time. There is, however, no research or other evidence to support this concern. Nor is there any evidence of male students pretending to be transgender girls so they can use the girls’ bathroom and accost girls (another concern raised by those who oppose transgender students using a matching restroom). The lack of reported problems is not surprising. Once a girl goes into a bathroom stall and closes the door, no one else using the bathroom will know the difference. Nor will anyone in the boys’ bathroom once the stall bathroom door is closed. For the most part, students have not shown the same concern as many of their parents and most schools have implemented gender-conforming bathroom use without incident.
In contrast, neither the courts nor the politicians appear to have considered what harm might result by requiring transgender students to use the bathroom of their birth gender. One wonders how cisgender girls feel when a transgender boy enters the girls’ bathroom because he is required to use the bathroom matching his gender at birth (girl), rather than the one that matches his current identity (boy). Which situation causes a cisgender student more distress: a student dressed as a girl (but biologically a boy) entering the girls’ bathroom, or a student dressed as a boy (but biologically female)? And why is there not more attention paid to this issue? The question of bathroom usage, of course, is more than just a legal one. “Gender dysphoria” is the clinical term that describes the mental distress that an individual experiences when they do not identify with their sex at birth, but rather with the opposite sex. The resulting physical and emotional symptoms can be severe and often require treatment with drugs or psychotherapy. When required to use a sex segregated restroom that no longer matches their gender identity, or a “special” restroom such as one in the nurse’s office, or a single stall unisex one that singles them out as different from their classmates, physical and mental harm often results. More than 40% of transgender students report that they fast, dehydrate, or find ways not to use the restroom while they are at school when they are not allowed to use the same restrooms as their cisgender classmates. Many school districts across the country report that they have implemented policies that allow transgender students to use the restroom matching their gender identity without incident. As an example, Los Angeles Unified School District, the second-largest district in the nation, has had a policy of inclusion for transgender students since 2005 without reported incidents.
Whatever the applicable law in your state, bathroom usage can also raise questions about sexual harassment, sexual assault, and bullying, both of which are already covered by Title IX. Transgender students often report bullying and harassing behavior at school because they do not fit stereotypical notions of feminine or masculine behavior. Requiring that these students use restrooms that do not match their identity makes them stand out even more.
For those of you located in a state that does not yet require you to allow gender-conforming bathroom usage, there is no definitive answer to the question of what bathroom transgender students should be allowed or required to use. But the legal requirements are not the only thing you should think about. The well-being of your students is also a consideration, as are other Title IX issues such as bullying and harassment which may or may not be related to bathroom usage by transgender students.
Preparing for Gender-Conforming Laws and Regulations
If you want to be prepared for possible required gender-conforming laws or regulations, here are some suggestions:
Know the law and follow it. If you are in a state that requires you to allow transgender students to use the restroom corresponding to their gender identity, you should already be doing so. If you are not, bring your district into compliance as quickly as possible.
If you are in a state that has no policy on the issue, or that bars enforcement of any Title IX regulations or other federal orders on the subject, you have the option of (a) allowing such usage, (b) planning for the day that you might be required to, or (c) doing nothing and possibly facing a lawsuit or other negative consequence. Even if “gender identity” is not part of Title IX’s definition of “sex discrimination,” gender-based bullying and harassment have always been prohibited and there is no injunction prohibiting enforcement of those provisions of Title IX. Students whose appearance does not match the other students in the restroom are likely targets of bullying and harassment.
If you decide to make changes in your restroom policies now, there are a myriad of things you can do that will satisfy any future requirements, avoid current problems, and possibly improve your school environment for everyone:
Ask your transgender students what would make them feel safe. Safety, propriety, privacy, and legality are the most frequently raised issues.
Include parents in the process. Ask for detailed input from parents, school leaders, and teachers. Make sure the information you provide to parents is up to date and based on facts, not speculation, and be prepared for strong parental reactions.
Consider using California as a model. It is probably at the forefront of protecting LGBTQ people in general, and transgender students in particular. In California schools, for example, students not only have the right to use gender-conforming restrooms. They also have the right to choose when, how, and whether to come out, to dress in a way that aligns with their gender identity, to date whom they want, and to form student groups such as a gay-straight alliance chapter. California also includes instruction in LGBTQ+ history in its history and social studies curricula.
Encourage—or at least allow—transgender students to change their names and the way they dress to correspond to their gender identity. Studies show they will have better mental health outcomes if you do.
Do not force transgender students to use separate unisex bathrooms.
A small percentage of students may prefer a more private space than your current school bathrooms allow. Whether for cultural or religious reasons, particular health issues, concerns related to gender, or simple modesty, schools should identify private options and make them available to any student who requests access to them. Regardless of a student’s reason for using it, private options should be free of stigma. At the same time, a private bathroom space should be optional; no student should be required to use such a space.
If other (cisgender) students (or their parents) are concerned about transgender students using restrooms with them, provide a single-user gender neutral bathroom alternative for the cisgender students, as well as any transgender students that wish to use it.
Consider creating a plan that addresses bathroom-related questions and allows students, families, and faculty to address issues relating to gender identity, including bathroom usage.
Do your homework. Read available materials. Become familiar with your federal, state, and local laws. Visit relevant websites including your state departments of education. Subscribe to publications and newsletters and keep up with the latest and best practices.
Be well informed on the subject so that you can respond promptly to students’ or parents’ questions with objective data and not speculation or unsubstantiated opinions on the subject. There is ample information available on the subject of transgender students, their rights, and bathroom usage. Talk to your colleagues in other schools and districts and find out what they are doing to address transgender issues, including bathroom usage to protect students.
Remember that every student should have equal opportunity and be able to use bathrooms and other school facilities without worrying about being harmed or mistreated or bullied.
McGrath Training Solutions offers training designed around Title IX issues such as bullying and harassment, how to investigate and treat them, how to respond to concerns and complaints and how to avoid liability. McGrath training helps schools stay up to date on the latest regulations and case law. Our blog posts will keep you up to date on what is happening in the state and federal courts, and changes in Title IX regulations. We customize our training for your district’s policies and procedures, including those related to gender identity in the classroom, restroom, and athletic field. McGrath has been a partner for thousands of schools and administrators across the United States for over 25 years. We can help you prepare so you are ready now for any changes related to gender identity and gender-conforming bathroom requirements. For more information, call us at 800-733-1638, or visit our website: www.mcgrathtraining.com [1] California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, Washington and Washington, D.C. [2] Tennessee, Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota, and West Virginia.
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