The rights of transgender students have been repeatedly put to the test in recent years. Across the country parents have clashed with school administrators and board of education trustees over issues involving which school locker rooms and bathrooms transgender students are able to use. And in at least three states — Maine, Colorado and Virginia — those debates became lawsuits.
Transgender students make up less than one percent of the student population nationwide. But like every other student, their right to attend federally funded schools in an environment free from discrimination on the basis of sex is guaranteed. That right was first established by the U.S. Education Department’s Title IX of the Education Amendments of 1972, amended in 2014 to include protection against discrimination based on gender identity or failure to conform to stereotypical notions of masculinity and femininity.
Here in New York, the state passed the Dignity for All Students Act (DASA) in 2010 — it took effect in 2012 — ensuring that every student in public school is provided with a safe and supportive environment. The Dignity Act forbids discrimination based on “a person’s actual or perceived race, color, weight, national origin, ethnic group, religion, religious practice, disability, sexual orientation and gender,” the latter defined as “a person’s actual or perceived sex and includes a person’s gender identity or expression.”
That legislation was followed in July of this year with very specific guidelines handed down to school districts from the state Education Department on how they’re expected to create a safe and supportive school environment for transgender students.
The Highland Central School District is, like all other school districts in the state, on a learning curve about all of this. “These are uncharted waters,” according to school superintendent Deborah Haab, who said she has attended three presentations done by different law firms just in the last month alone, “all very consistent in their messages to the school districts on what our responsibilities are.”
Haab spoke during a special meeting held prior to the regularly scheduled BOE meeting on Tuesday, October 20. The meeting was called in order to give parents an opportunity to learn about what the new state-instituted guidelines will mean to the Highland district.
Approximately 50 parents were in attendance along with school administrators, coaches and two members of the Gay, Lesbian & Straight Education Network (GLSEN), a national organization headquartered in Yorktown Heights that offers education and support to students and schools involving issues of sexual discrimination. Those assembled listened as school district attorney, Garrett Silveira, of Shaw, Perelson, May & Lambert LLP gave his presentation.
Silveira first explained the verbiage used when discussing issues of sexual identity, explaining that it’s not the same as sexual orientation. “Gender identity is an internal, personal sense of whether one is a male or female,” Silveira said, “regardless of the gender assigned at birth, determined by anatomy.”
Transgender children experience greater discrimination, bullying and abuse than their counterparts, including homosexual youth, said the attorney. He cited research that shows transgender youth are more at risk of committing suicide and said they have higher drop-out rates.
Silveira then outlined the requirements school districts will be expected to adhere to as laid out by the state.
The responsibility for determining a student’s gender identity rests with the student, or in the case of a young student not yet able to advocate for themselves, with the parent. A school should accept a student’s assertion of his or her gender identity when there is “consistent and uniform” assertion of the identity along with other evidence that the gender-related identity is “sincerely held” as part of the individual’s core identity.
The state’s new guidelines require teachers and school officials to call a student by the name chosen by the student, as long as they consistently present themselves as that person. This is true even if the student doesn’t dress in ways stereotypically associated with the chosen gender. So “John” who identifies as female must be called “Jane” if the female gender identification has been established, and along with that, the correct pronoun referring to him or her must be used by school staff and administration.
The school is not required to notify the child’s parents that the student is asserting a specific gender identity (there may be students who have not adopted the new gender identity at home). In fact, all students have a right to privacy under federal law (the Family Educational Rights and Privacy Act) and any information about a student’s transgender status or legal name is confidential. Official school records must reflect both names.
The most controversial part of the guidelines has to do with school locker rooms and bathrooms. Public schools cannot exclude a transgender student from any class, program, sports team or facility (such as a restroom or locker room) with which they identify. Schools can comply with the guidelines by establishing unisex bathrooms, but at the same time, transgender students cannot be required to use the unisex facilities. Requiring that transgender students use a separate bathroom violates the law, so even if there is a unisex facility available, should that student choose instead to use the facilities set aside for the gender they identify with, they may. Any student uncomfortable with transgender students using the same restroom may request alternate options, such as a staff bathroom or nurse’s office restroom.
The same guidelines apply to locker rooms. While unisex is not an option there, private changing spaces separated by dividers or curtains is the only alternative available to non-transgender students uncomfortable with being put into close contact with students whose anatomies are different from theirs.
When Silveira’s presentation was over and it was time for Q&A, the major concern for most of the parents had to do with shared bathrooms and locker rooms. “What about my daughter’s rights?” said one father. “Why does she have to go in the same bathroom if she isn’t comfortable? Isn’t that discrimination against her rights?” A mother voiced concern that her daughter would have to undress in a locker room in front of a person who had male genitalia. “My children have been taught not to undress in front of the opposite sex. What about our children’s comfort level?”
Silveira confined his answers to the legalities, reminding the assembled parents that he was there to educate the community on what the new guidelines are, and that law in this area is fluid at this time, as all of this is new territory. “What the law tells us,” he responded, “is that we cannot discriminate. The law says to make available to all individuals a bathroom or locker room they can go to where they feel comfortable. No one is asking you to change your opinion, but we do not discriminate against a child because of their transgender status.”
One parent asked if having to provide unisex bathrooms would mean more tax dollars required for construction. Superintendent Haab responded that she’d had a discussion with district building manager Peter Miller about changing signage on existing bathrooms and converting some unused shower stalls in locker rooms as private changing areas.
Students with privacy concerns who feel uncomfortable sharing a bathroom or locker room with a transgender student are encouraged to speak with the school principal or any adult staff member they feel comfortable speaking with. Attorney Silveira said the Highland district will explore alternative arrangements for any child who feels uncomfortable, but one parent at the meeting pointed out that many children would feel inhibited about speaking up and would be more likely to just put up with an uncomfortable situation rather than draw attention to themselves by asking for privacy accommodations.
To the attorney’s assertion that education on transgender identity would ideally start with kindergarten students in the future and expand as children get older, one mother protested, saying, “We can hardly comprehend any of this, let alone putting this on our kids. They shouldn’t have to think about this!”
Another mother said she has a child who is questioning their gender identity and hopes her child feels safe when they go to school. She said she thinks children are “not born not liking people” and she thinks the parents are putting their own biases onto their kids. But another woman reputed that, saying she asked her third grader very casually how she would feel sharing a bathroom with a boy who felt inside like he was a girl. “I would feel really weird, Mom,” was the response she heard.
One parent questioned why the school district hadn’t sent a letter home about the new guidelines before they became fact, noting that parents in Highland receive a great deal of communication from the district about other things of less consequence.
The guidelines were only just handed down in July, said Superintendent Haab. “And we didn’t know that we had a transgender student who was going to come to us in September and express how they felt; what their gender identity was and how they wanted to be treated. We didn’t know we were going to have to address this so quickly before we had an opportunity to really become fully educated ourselves. We are dealing with these regulations right now on a day-to-day basis.”
Haab reminded the parent that the district cannot disclose information about individual students. “If you have one or two students who are in this situation and they begin to express themselves, if we send out that information to everyone, we’re jeopardizing the privacy of that student.”
As a parent herself, she added, “I understand that we’re concerned about the rights and privacy and wellbeing of all of our children. This has probably been with us since time began, but things have changed, and the rights of individuals and the understanding and acceptance has increased significantly over the years. We want to work with all of you and with your children to make sure they feel safe and respected and that they get the education they are here to get. This is our first attempt to bring you in with us in this journey and this challenge, and, are we going to get it right 100 percent of the time? I highly doubt it. Will we do our best 100 percent of the time? I can guarantee you we will do our best for all of your children.”
New Paltz Central School District Superintendent Maria Rice said that at this time, “as in the past, we are addressing each transgender case individually. We are also looking at ways to universally address some of the accommodations for privacy in regard to bathrooms and shower rooms. We went to each school facility to assess where there may be single, private bathrooms that may be used as male or female bathrooms, much like the “family” bathrooms you see at an airport. We are also looking at how we might put curtains in the locker rooms at the high school and middle school for privacy of any student who may be uncomfortable undressing in front of others.”
Statistics and other detailed information about transgender students and applicable anti-discrimination laws can be found on the New York State Education Department website at https://www.p12.nysed.gov/dignityact/documents/Transg_GNCGuidanceFINAL.pdf. Additional information can also be found on the Highland Central School District website homepage at www.highland-k12.org.