By Perry A. Zirkel
Principal, March/April 2015

One issue that reflects changing societal values and public awareness is the meaning of diversity in terms of individuals who are lesbian, gay, bisexual, or transgender (LGBT). Gender identity may be of acute significance even for students in elementary or middle school. The reaction of others, including staff members and other students, may either accentuate or alleviate a student’s psychological struggle with this individually central issue.

An emerging source of present and potential litigation is the passage in some states of laws that explicitly extend civil rights protections to LGBT individuals. The intersection of other active legal issues, such as bullying, interscholastic sports, and recognition of student groups, increase the importance of principals’ legal awareness and proactive leadership with regard to LGBT students.

The Case
Susan Doe was born male but began to express a female identity at age 2. In third grade, Susan began to manifest her identity as a girl. The principal became aware that Susan was transgender, and teachers and students began to refer to her as “she.” In the second semester of grade 4, Susan received a diagnosis of gender dysphoria, which is the medical term for psychological distress from having a gender identity different from the sex that one was assigned at birth. School officials recognized the importance for Susan’s psychological health for her to live socially as female.

The guidance counselor, special services director, and Susan’s parents developed a 504 plan to address her gender identity issues, particularly in the transition to the fifth grade, where students used sex-separated communal bathrooms. They recommended that Susan use the girls’ bathroom, with a staff unisex bathroom available if her use of the girls’ bathroom became “an issue.”

At the start of fifth grade, Susan’s use of the girls’ bathroom went smoothly. However, after about a month, one of the male students followed Susan into the girls’ bathroom on two separate occasions, claiming that he was entitled the same access as she had. These incidents generated extensive media coverage. As a result, and over Susan’s parents’ objections, the administration required her to use the staff unisex single-stall bathroom.

Considering this decision to be unacceptable and illegal, Susan’s parents moved to another school district and filed a complaint with the Maine Human Relations Commission. The commission found reasonable grounds that the school’s action violated the 2005 amendments of the state’s human relations act, which expressly extended its prohibitions to discrimination based on sexual orientation, defined to include gender identify as a protected class. The parents then filed suit in state court against the school district’s exclusion of Susan from the use of the girls’ bathroom. The court granted the district’s motion for summary judgment, relying on a state statute, also applicable to public schools, that required “clean toilets … separated by sex.”

What was the judicial outcome of  the appeal?
In Doe v. Regional School Unit 26 (2014), Maine’s highest court ruled 5-1 in favor of Susan’s parents. Although recognizing that balancing the school’s institutional interest in maintaining order and a transgender student’s individual civil rights is particularly challenging in the formative grades and that the school officials in this case had exhibited notable sensitivity, the majority found no difficulty in harmonizing the state’s separate bathrooms law and its human relations act.

The court ruled that “ban[ing] Susan from the girl’s bathroom, based … on others’ complaints about the school’s well-considered [original] decision constituted discrimination based on Susan’s sexual orientation” in violation of the state’s human relations act. The singhel dissenting judge argued that the majority’s interpretation that the separate bathrooms law narrowly applied to the provision for, not access to, these sex-segregated facilities “inescapably lead[s] to the conclusion that an individual may not be denied access to public bathrooms based upon sex” and that the legislature needs to revise either or both of the applicable statutes to resolve their conflicting directions.

The majority countered that its interpretation of these state laws does not require schools in Maine to permit students casual access to any bathroom of their choice, but rather it is limited to situations “where, as here, it has been clearly established that a student’s psychological well-being and educational success depend upon being permitted to use the communal bathroom consistent with her gender identity.”

Upon remand of the case from the state’s Supreme Court, the trial court reportedly ordered the district to a.) allow “access by transgender students to school restrooms that are consistent with their gender identity” and b.) pay $75,000 as the financial award, including attorneys’ fees.

Does this decision apply to transgender students in other states and for other facilities or activities?
Not automatically. First, its applicability depends on the specific wording and court interpretations in that state of the legislation or regulations, if any, concerning sex discrimination. For example, in those states, like Maine, where the law expressly extends to gender orientation, this decision may be more likely to be persuasive, although not binding. The Colorado civil rights agency decided a similar case on behalf of transgender first grader Coy Mathis during the previous year, based on a parallel statute.

Second, parents of transgender students are likely to alternatively or additionally pursue litigation under the federal prohibition of sex discrimination in Title IX or its more general constitutional counterpart in the 14th Amendment’s equal protection clause. Sensitive awareness and sensible solutions at the local level, including effective communication with both the child’s parents and the other parents, along with proactive education of students and staff, will help stem the tide of such fractious litigation.

Third, it depends on the specific facility or activity at issue. As an example of another state and another activity in another state, in Doe v. Yunits (2014), the administration responded to hostile reactions of other students, including bullying, by banning an eighth-grader with gender identity disorder from wearing “any outfits

disruptive to the educational process, specifically padded bras, skirts or dresses, or wigs.” The parents of this student filed suit in a trial court in Massachusetts based on eight alternative grounds, including the state human relations act. The court issued a preliminary injunction in favor of the parents, concluding that they had established sufficient likelihood of success based on the Massachusetts constitution’s provisions for freedom of expression and liberty of individual appearance, as well as the state law prohibiting discrimination on various bases, including sexual orientation.

Does Section 504 apply to LGBT students more generally?
No, not generally for conditions such as transgender identity alone. The Americans with Disabilities Act of 1990, which applies in pertinent part to Section 504, expressly excludes “transvestism, transsexualism … [and] gender identity disorders not resulting from physical impairments.” Within the broad and varied rubric of LGBT, the individual student’s psychological well-being, in part attributable to the school culture, may not impair any major life activity substantially, thus making the exclusion superfluous.

On the other hand, some LGBT students may qualify under Section 504 or the Individuals with Disabilities Education Act based on physical or other non-excluded impairments, thus arguably warranting assessing and addressing gender-related individual needs. Moreover and more importantly, as Susan’s case illustrates, a school has the option of using the team-based and individual-accommodation approach of Section 504 by analogy, with the understanding that if the school provides a “504 plan” per se, it may be argued that the school has effectively imported the full procedural and substantive protections of Section 504 unless and until duly exiting the child.

What other legal issues have arisen in recent years concerning LGBT students more generally?
The most frequent issue is recognition and access to student groups that advocate LGBT rights. The student-plaintiffs have won the vast majority of these cases, but most of them have been decided under the Equal Access Act, which only applies to schools defined under state law as being at the secondary level. However, if such a case arose at the elementary level, the claim would be viewpoint discrimination under the First Amendment, although the outcome would be uncertain, especially in the early grades.

Other issues more likely to arise at the elementary level include bullying or peer harassment of students who are or are perceived as LGBT, student expression advocating or condemning LGBT views; school use of Internet software that filter out LGBT information, and school curricula concerning sexual diversity.

Conclusion
Although issues regarding transgender identification are low incidence, they are more frequent than traditionally recognized and are more susceptible to litigation than in previous times. Moreover, transgender is only part of a larger continuum of gender and sexual diversity that extends to LGBTTQQIAAP (lesbian, gay, bisexual, transgender, transsexual, queer, questioning, intersex, asexual, ally, panssexual). While the larger community contends with the social and legal issues such as gay marriage, the school community must be aware of and ready to address the changing social mores and legal issues concerning the gender identity of children in their formative years.

Proactive leadership in providing a successful and inclusive school culture, including effective problem-solving at the local level, can mitigate the over-reliance on legislation and litigation in such difficult and delicate matters.

Perry A. Zirkel is a professor of education and law at Lehigh University.

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