Where Does The Feds’ Withdrawal of Transgender Guidance Leave School Districts?

Wisconsin Association of School Boards Update:

February 24, 2017National Issue, State IssueBathrooms/Lockerrooms, eConnection, Jesse Kremer, Local Control, Title IX, Transgender Students, U.S. Department of Education, U.S. Department of Justice, U.S. Supreme Court, WASB Policy PerspectivesDan Rossmiller

Federal Enforcement Actions: The joint decision by the U.S. Departments of Justice and Education to withdraw and rescind past guidance on transgendered students means those departments will not be independently pursuing enforcement actions against schools and/or threatening the loss of federal funds based on a school district’s alleged failure to implement each and every aspect of the former guidelines.

As a practical matter, enforcement of the rescinded guidance has been on hold since last August when a federal district court in Texas issued a nationwide injunction blocking enforcement. (See previous post.) The Wisconsin Department of Justice was one of several state departments that joined a federal lawsuit challenging the guidance that resulted in the issuance of that injunction. (See previous post.) Given the latest action from the new Trump administration, that lawsuit is “essentially moot,” according to a state DOJ spokesman.

Local School District Policies: For the moment, at least, most school districts are in position very similar to the position they were in before the now-withdrawn guidance was originally issued.  That is, there is substantial uncertainty about the extent to which Title IX prohibits discrimination on the basis of gender identity.

In light of that uncertainty, districts generally retain discretion to implement policies, procedures, and practices that school leaders determine are consistent with local priorities and that attempt to reasonably interpret applicable law—including the possibility that the courts, irrespective of the Departments’ changing position, will interpret Title IX to prohibit certain discrimination on the basis of a student’s gender identity.

School districts, for example, can choose to adopt (or retain) and implement otherwise-lawful local policies that provide protections and rights on the basis of a student’s gender identity, or that permit or require certain individualized accommodations.  As this Wisconsin Public Radio report suggests, some districts that have adopted such policies apparently intended to keep them in place.

Significantly, the withdrawal of the prior federal guidance does not prevent students, parents, or their representatives from filing (or continuing to pursue) complaints or lawsuits that allege unlawful discrimination under Title IX or violations of privacy rights.  (The Kenosha Unified School District is involved in pending litigation (a private action not brought by a student and the student’s parents and not the DOJ or DOE) regarding bathroom access that could potentially set state-wide precedent by defining a school district’s obligation in this area.)

Potential Legislation:  It appears likely that at least some state legislators may attempt to pursue one or more different “bathroom bills” in the current legislative session. In media reports, state Rep. Jesse Kremer (R-Kewaskum) was quoted as saying that while he is pleased by the Trump Administration’s change in position, he still intends to re-introduce a bill to force public school students to use bathrooms and changing rooms that correspond with their birth gender. A similar bill introduced by Rep. Kremer last session did not advance out of the Assembly Education Committee. (See previous post.)

Pending U.S. Supreme Court Case: The next major legal (court) development regarding the rights of transgender students is expected to occur later this year when the U.S. Supreme Court issues a decision in a Virginia case that raises the specific question of whether Title IX prohibits discrimination on the basis of gender identity. That case is scheduled for oral arguments in Washington on March 28.

Summary: In short, while school leaders await further clarification or a resolution of their legal obligations from the courts and, potentially, from Congress, the state legislature, and administrative agencies, they will continue to face policy challenges as they attempt to balance student rights and personal privacy, provide safe learning environments for all students, and ensure that no student is unnecessarily marginalized.

The WASB will be providing more information and guidance for school boards on this topic as developments warrant.  Please look for articles and other helpful information this blog (the LegUpdate Blog), in the weekly Legislative Update Newsletter, in the weekly eConnection and in the WASB Policy Perspectives.

News Coverage About the Impact of the Change: The Economist; Washington Post; National Public Radio; Fox News; EdWeek

 

 

Trump Administration Rescinds Protections For Transgender Students

 02/22/2017

The Obama administration tried to stop schools from discriminating based on gender identity.

By Amanda Terkel

President Donald Trump’s administration announced on Wednesday that it will no longer bar schools from discriminating against transgender students, rescinding a policy put in place by the previous administration.

“The prior guidance documents did not contain sufficient legal analysis or explain how the interpretation was consistent with the language of Title IX. The Department of Education and the Department of Justice therefore have withdrawn the guidance,” Attorney General Jeff Sessions said in a statement. “Congress, state legislatures, and local governments are in a position to adopt appropriate policies or laws addressing this issue. The Department of Justice remains committed to the proper interpretation and enforcement of Title IX and to its protections for all students, including LGBTQ students, from discrimination, bullying, and harassment.”

In May, under President Barack Obama, the departments of Education and Justice issued guidance mandating that any school that receives federal money must treat a student’s gender identity as his or her sex. Schools, for example, would therefore have to allow transgender individuals to use the restroom that corresponds to their gender identity, rather than the sex assigned to them at birth.

The federal government said at the time that transgender students were covered under Title IX, the statute that prohibits discrimination on the basis of sex. This interpretation had been on hold, however, after more than a dozen states sued the Obama administration and a judge issued an injunction in August.

Education Secretary Betsy DeVos was reportedly against rescinding the order and initially resisted signing off on it, but Sessions pushed her to do so because both departments had to agree in order to move forward.

In a statement Wednesday, DeVos said she considered protecting all students, including lesbian, gay, bisexual, transgender and queer students, “not only a key priority for the Department, but for every school in America.”

“This is an issue best solved at the state and local level. Schools, communities, and families can find ― and in many cases have found ― solutions that protect all students,” she added.

White House press secretary Sean Spicer argued during his press briefing earlier Wednesday that Title IX does not apply to transgender issues because there was no discussion of gender identity when the statute was passed in 1972. Judges and justices, however, often interpret laws and the Constitution to apply to new issues that arise.

Spicer also said there were no disagreements between DeVos and Sessions.

Nikki Kahn/The Washington Post via Getty Images

Transgender teen Gavin Grimm sued the Gloucester County School Board after it barred him from the boys bathroom.

The Trump administration’s announcement is the latest in its shift away from the protection of transgender rights that became a legacy of the Obama era. The new administration also recently announced it would not appeal the August ruling. Under Obama, the Justice Department tried to argue that the ruling should appeal only to the states that were part of the suit rather than to all states.

Trump has tried to portray himself as a defender of the lesbian, gay, bisexual, transgender and queer community, pledging in his Republican National Convention speech that he would protect its members from terrorist attacks. The president has said, however, that he does not support marriage equality even though he considers the issue settled law because the Supreme Court ruled on the matter. During the campaign, Trump said he supported a North Carolina law that barred cities from putting protections for LGBTQ individuals in place. His administration has also been considering at least two anti-LGBTQ executive orders.

Spicer said Tuesday that the president considered transgender rights to be “a states’ rights issue and not one for the federal government.”

“I find it obscene that Mr. Spicer would characterize the well-being, the health and the very safety of transgender young people as an issue of states’ rights,” responded Eliza Byard, executive director of the Gay, Lesbian and Straight Education Network. “The fact is that no child in America should have their rights subject to their zip code.”

Transgender students experience a significant degree of bullying in school.

The majority of respondents to the 2015 U.S. Transgender Survey who were out or perceived as being transgender while in school (K-12) reported being verbally harassed (54 percent), physically attacked (24 percent) or sexually assaulted (13 percent) because they were transgender.

“I worry that in the backlash and response, people are forgetting that these are children who fundamentally just need to go to school and have a right to be educated and not being able to use the bathroom that accords with their gender identity has profound consequences on their ability to actually receive an equal education. I feel like the human face of this has gotten lost in this,” Vanita Gupta, who at the time was the head of the Justice Department’s Civil Rights Division, told The Huffington Post in December.

The Trump administration’s latest decision could also affect the case of Gavin Grimm, a transgender teenager in Virginia who sued his school for the right to use the boys bathroom. The Supreme Court is set to hear oral arguments on March 28, and the rescinding of the federal guidance could give the court an excuse to throw it back to the lower court.

LGBTQ advocates emphasized Wednesday that even though the Trump administration rescinded the Obama administration’s Title IX guidance, the legal foundation that interpretation was built upon is still solid.

“While it’s disappointing to see the Trump administration revoke the guidance, the administration cannot change what Title IX means,” said Joshua Block, a senior staff attorney at the American Civil Liberties Union who is lead counsel for Grimm. “When it decided to hear Gavin Grimm’s case, the Supreme Court said it would decide which interpretation of Title IX is correct, without taking any administration’s guidance into consideration. We’re confident that the law is on Gavin’s side and he will prevail just as he did in the Fourth Circuit.”

Ryan Reilly contributed reporting.

Baraboo School Board to Weigh Transgender Policy

Baraboo News Republic 12-15-2014

The Baraboo School Board is scheduled to take a final vote Monday on a new policy that would establish guidelines for including transgender students in co-curricular activities.

More than a dozen community members voiced opposition to the policy at the last board meeting, and people on both sides of the issue plan to speak out during Monday’s public comments.

All board members except Ed Mortimer approved the policy on its first reading Nov. 24.

School officials said the policy, introduced to the board last month, is based on a Wisconsin Interscholastic Athletic Association policy passed last year, and similar guidelines developed by other states and the National Collegiate Athletic Association.

Deputy WIAA Director Wade Labecki said the association approved its policy to ensure member schools had guidelines for transgender students’ participation in sports.
“We felt that we needed to be proactive,” Labecki said, citing U.S. Department of Education guidance that transgender students are protected under Title IX, a federal law that prohibits discrimination based on sex in federally funded activities and education programs.
School districts in Oshkosh and the Milwaukee area already have established their own transgender student athletics participation policies.
“It’s a question that comes up probably three to four times a year, on how to address that issue,” Labecki said, adding that he has fielded questions from rural and urban districts across the state.

Denying transgender students equal access to sports and activities could have legal ramifications for schools, he said. Labecki said some people want to debate what they believe to be the moral implications of such policies.
“We don’t debate that,” he said.

More discussion sought

Ginny Maziarka, of Baraboo, said she attended the Nov. 24 school board meeting because she believed community concerns had been disregarded by board members.
Maziarka said she didn’t learn about the policy until it was going to be up for a final vote. She said she believes that the board should initiate a forum for community dialogue about the policy.
“Most everyone, everyone I talked to about it didn’t know about it,” said the grandmother, whose grandchildren do not live within the school district.
Maziarka said that as a taxpayer, she doesn’t believe the district has developed an adequate plan to implement the proposed policy.
Maziarka said she believes the policy would contribute to a breakdown of “the natural inhibitions of students,” ignore differences between the sexes and compromise student privacy.
She said she’s also concerned about the issue from a facilities standpoint, including the cost of any modifications that might need to be made to locker rooms.
“What has the district determined to be an equitable facility?” Maziarka asked.
Maziarka said she’d like to see Monday’s vote on the proposal tabled until a community forum can be held.
Concerns about facilities
The official second reading of the policy was delayed last month when former school board member Scott Frostman, who spoke during the public comments section of the Nov. 24 meeting, said he didn’t believe the policy had been appropriately read aloud.
Frostman, whose son attends Baraboo High School, and daughter attends a local religious school, said he recently asked board members and district officials for a copy of a written plan for implementing the participation policy but received no materials.
He said he is concerned about how the district will ensure a safe environment for students regarding facilities and provide competitive equity. Frostman said he believes possible “inappropriate environments” could be created by transgender students’ use of locker rooms aligned with their birth sex or with their gender identity.
The issues could be further complicated as teams travel from school to school, Frostman added.
“I think that needs to be specified,” he said of a protocol for facility use.
Frostman said he has concerns about how the policy could affect spring sports.
“I think the district would be premature to adopt the policy at this point without an accompanying plan,” he said, adding that he believes the district also opens itself up to legal concerns should the board adopt the policy without a plan in place.
Policy in practice
Labecki said WIAA’s and similar policies prevent people from presenting themselves as transgender when they do not identify as such, one concern mentioned by critics of Baraboo’s policy. The guidelines establish medical documentation requirements for students to privately certify with the district that they identify as transgender in order to play on the teams with which they identify.
The policy aims to provide competitive equity, ensure equal access to sports, and maintain the privacy of the students, Labecki said.
“I know people have concerns,” he said, adding that he understands that many haven’t been exposed to the issue before.
“I think there are a lot of questions from the community, and legitimate questions in terms of, ‘What would this policy look like in practice?’” said Baraboo’s Director of Special Education and Pupil Services Dani Scott.
The day-to-day implementation of the policy will need to be handled on a case-by-case basis, Scott said, adding that all students have the right to privacy and to feel safe in district facilities, teams and activities.
“We want to provide facilities that respect the rights and privacy of all students,” she said. “And so we would work with the transgender students as well as non-transgender students to make sure they have access to facilities they feel safe and comfortable in.”
There are students in the district who identify as transgender, she said. “This is not an issue that hasn’t touched our community.”
Scott said the district has received messages in support of the policy in addition to comments from those who are opposed.
Some local school staff members recently attended a presentation put on by the district’s Gay/Straight Alliance club to help them better understand some of the issues at hand.
Right to participate
The Rev. Marianne Cotter, pastor of Baraboo’s First United Methodist Church, held an information session on the policy Wednesday night. She plans to speak at Monday’s meeting along with several church members.
Cotter, who joined the Baraboo community this summer, said she’s heard that the school district has done a good job of promoting a climate that addresses bullying and makes sure all students feel safe. The transgender participation policy implements several of the district’s stated core beliefs, she said.
“I believe it’s important to speak up and to be an ally for those who don’t always find it easy or safe to speak up for themselves,” she said.
Involvement in sports is an important part of life for many young people, Cotter said, adding that she believes all students should have access to such opportunities.
“Every person is a child of God and worthy of respect, regardless of sexual orientation or gender identity … ” she wrote in the statement she plans to share Monday.
“My church is clear that every person is a person who is of sacred worth,” she said.

Milwaukee’s Alliance High School Featured in Time Magazine as Model Program

Time Specials

By Kayla Webley  Oct. 13, 2011

The taunting started four years ago, when Dylan Huegerich was 10. Back then, he didn’t know what being gay meant, and even today the soft-spoken teenager isn’t sure where he fits on the spectrum of sexual orientation. He knows he’s different. He knows that his sense of style — his chin-length hair, his dabbling with makeup — caught the eyes of school bullies in Saukville, Wis. In seventh grade he was pelted with snowballs and shoved into lockers. Everywhere he went on campus, students shouted anti-gay slurs and pointed and stared. “It hurt so bad,” he says. “I hated my life. I hated everything.”

His mother Amy tried to intervene. She says she was told it was her son’s fault for standing out and that he should cut his hair or try to act “more manly,” allegations the principal declined to comment on. Dylan’s mother considered volunteering in his classroom or the cafeteria, but that wouldn’t protect him the rest of the time. Every morning, she says, “I knew I was driving him back to this place where he was hurting. Oh, they beat you up? Here, go there again. My heart broke every time he got out of the car.” When the time came to register Dylan for eighth grade, she decided against re-enrollment. “I felt like if I turned in those forms, I was giving him some kind of a sentence,” she says.

So instead of sending Dylan back to a school that was a 10-minute drive from his house, his mother opted for the publicly funded Alliance School, an hour and a half away in downtown Milwaukee. The only overtly gay-friendly charter school in the U.S. to accept students as early as the sixth grade, Alliance has several boys who, with their painted nails and longer hairstyles, look like Dylan. But more important, it has many students who say they know how Dylan feels. While only about half of Alliance’s 165-member student body identifies as lesbian, gay, bisexual or transgender (LGBT), nearly all were bullied or harassed at their previous schools. The hallways are filled with masculine girls, effeminate boys, punks, goths, runts, the overweight and the ultra-nerds. Alliance art teacher Jill Engel affectionately calls the school “the island of misfit toys.”

The Alliance School is a radical solution to a much debated problem. Children have long been taunted with homophobic slurs, but a recent string of high-profile suicides has led school and government officials to pay more attention to this subset of bullying victims. Nine out of 10 LGBT students say they have experienced bullying or harassment, according to a nationwide survey of 7,261 middle and high school students conducted in 2009 by the Gay, Lesbian and Straight Education Network (GLSEN). Nearly two-thirds of respondents said they have felt unsafe in school; 1 in 5 reported having been physically assaulted.

Parents want to protect their kids, but is wrapping them in an Alliance-style cocoon of tolerance the best solution? Some conservatives oppose the idea of a gay-friendly school on moral grounds, others for fiscal reasons: Why should taxpayers help make sexuality a central part of a child’s or a school’s identity? Developmental experts — and many gay activists — question the wisdom of shielding some students rather than teaching kids coping skills and promoting an atmosphere of respect on all campuses. “Being segregated doesn’t help gay kids learn, it doesn’t help straight kids learn, it doesn’t help bullies learn,” says Ritch Savin-Williams, a professor at Cornell University who chairs the human-development department. “All it does is relieve the school and the teachers of responsibility. It’s a lose-lose situation all around.” And yet to some bullying victims, it’s nothing short of a lifeline.