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Duncan on Transgender Students: Ed. Dept. Has 'Tried to Be As Clear As We Can'

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Will the Education Department ever issue more specific guidance on the rights of transgender students under Title IX?

I asked U.S. Secretary of Education Arne Duncan that question today during a Q and A session at the Education Writers Association conference in Chicago. He said he's not aware of any current plans, but he's not totally sure.

"We have tried to be as clear as we can," about schools' obligations to transgender students under the civil rights law, Duncan said. He added, "I think my short, non-legal, non-technical answer is that we need to do everything in schools to help children to feel safe, to feel supported, to feel comfortable."

I asked this incredibly specific question in front of a room full of education reporters because it seems there's a lack of clarity for district leaders about this issue. And, while transgender students represent a very small portion of the overall student population, it's clear from local news accounts around the country that more schools are working to accomodate their needs.

LGBT student groups have pressured the Education Department to issue more specific guidance about transgender students. Should schools be required to give them access to bathrooms that match their gender identity, rather than their sex assigned at birth? Should students be allowed to select the pronouns teachers use to refer to them?

Potential for conflicting laws

Here's my big question: If I'm a principal in a state that passes a law about bathroom use in schools, will I be violating federal civil rights laws by abiding by that new state law?

Several states have considered such bills this year. In Texas, for example, a proposed bill "would require school districts to adopt a policy to ensure only people of the same 'biological sex' may be in the same bathroom or locker room at any given time," the Associated Press reported. "It also specifies that students could sue their school district and recover as much as $2,000 in damages if they encounter a peer of the opposite sex in the bathroom or locker room."

So what does the Education Department—which hasn't been shy about issuing civil rights guidance in all sorts of areas during Duncan's tenure—think of all of this?

In April 2014, the department clarified that Title IX protects all students, regardless of sexual orientation or gender identity, a move that was celebrated by advocates.

GLSN and more than 40 other organizations wrote to the department later that year, however, asking for further clarification that Title IX protections include requiring that schools allow transgender students to participate in all programs and sports activities, "respect students' gender identity for all purposes," and enforce dress codes based on a students' stated gender identity and expression.

Legal history

While the Education Department hasn't issued a specific, concise package of detailed guidance on these issues, it has weighed in on them in other ways, such as court filings and civil rights agreements.

In July 2013, for example, the Arcadia Unified School District in California agreed to a settlement with the U.S. Department of Justice's civil rights division and the Education Department's office for civil rights following a complaint by a then-rising 9th grader who was born female but now identifies as a boy. The school had refused to let the student use the boys' restroom, among other things. After negotiations with the federal agencies, the district agreed to treat the student as it treats male students in regards to facilities and other issues.

And, in perhaps the clearest statement on the issue yet, attorneys from the departments of justice and education filed a statement of interest in a federal court case in February, arguing that Title IX provides certain protections for transgender students in schools

"In the case, the parents of a student who was born a girl but who now identifies as a boy argued that his former middle school in Wyandotte, Mich., discriminated against him in several ways," I wrote in a blog post about that filing. "If those allegations can be proven as true, the student has 'sufficient facts to establish a sex stereotyping claim,' the federal agencies said in their court filing."

The student claims that school leaders refused to let him use the boy's bathroom,  and that a teacher addressed him by his female birth name, among other issues.  From my previous post:

" 'Under Title IX and the Equal Protection Clause, discrimination based on a person's nonconformity to sex stereotypes, a person's gender identity, or a person's transgender status constitutes discrimination based on sex,' the statement of interest says.

And discriminating against a student because he or she has adopted a new gender identity is as much a violation of the law as discriminating against a student because he is male or female, the document says. The attorneys quoted a ruling from a previous case, which compared the issue to religious discrimination:

'Imagine that an employee is fired because she converts from Christianity to Judaism. Imagine too that her employer testifies that he harbors no bias toward either Christians or Jews but only 'converts.' That would be a clear case of discrimination 'because of religion,' ' a judge wrote in that ruling. "No court would take seriously the notion that 'converts' are not covered by the statute. Discrimination 'because of religion' easily encompasses discrimination because of a change of religion.' "

But are school and district leaders aware of the department's position related to this student group without more specific information that is tailored to their concerns? And what happens if one of these state laws on bathroom use passes?

What do you think? Do you think schools' Title IX obligations related to transgender students are clear? Has this been an issue in schools near you?


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