The Law Trends toward Transgender Students: Courts and the Federal Government Are Granting More Rights and Privileges for Transgender Students to Be Who They Feel They Are in Schools and at School Events

By Darden, Edwin C. | Phi Delta Kappan, October 2014 | Go to article overview

The Law Trends toward Transgender Students: Courts and the Federal Government Are Granting More Rights and Privileges for Transgender Students to Be Who They Feel They Are in Schools and at School Events


Darden, Edwin C., Phi Delta Kappan


Two years ago, Coy Mathis, an angel-faced 1st grader, caused a sensation at Eagleside Elementary School in Fountain, Colo. Born biologically male, Coy dressed and identified as a transgender female and insisted on using the girls' bathroom at school. School officials said absolutely not.

Meanwhile in Maine, a school district reacted to controversy and reversed a decision that had allowed Nicole Maines, a transgender 5th grader who was born male, to use the girls' bathroom.

Both rebuffs sparked legal clashes and are symbolic of a still-unfolding nationwide drama for K-12 public schools. Educators in large and small communities increasingly confront delicate issues surrounding transgender students--youngsters who feel trapped by the gender designation of the body they were born into and either socially or medically transform to what they feel is their true identity.

While reluctant parents and uncomfortable peers might pressure schools to restrict transgender students, the law and evolving notions of gender identity are trending the other way. Court decisions, human rights commissions, and the U.S. Department of Education have predominantly sided with transgender students on access and nondiscrimination. California even passed a law.

Given that reality, principals, teachers, superintendents, school boards, and attorneys have a duty to embrace policies and practices that respect a student's wishes while factoring in pragmatic concerns of propriety and safety.

In Colorado, the Civil Rights Commission ruled in favor of Mathis, the transgender 6-year-old. She had been told her only options were to use the boys' room, the nurse's bathroom, or the staff bathroom. Fountain-Fort Carson School District 8 officials said its obligations under the law were unclear.

The Maine dispute had a similar triumph via the courts. Born Wyatt Maines, Nicole identified with girls beginning at 2-years-old. In the early grades, she had permission to use the girls' bathroom.

In 5th grade, a boy followed Nicole into the bathroom on two occasions. He said his grandfather had told him that if Nicole could use the girls' bathroom, so could he.

Afterward, the school district concluded that Nicole would be required to use a single-stall, unisex, staff bathroom and follow the same practice in middle school.

The Maine Human Rights Commission had previously ruled that discrimination occurred when the district barred Nicole's use of the girls' bathroom. Nicole and her parents sued the Regional School Unit 26 in Orono.

The Maine Supreme Judicial Court ruled 5-1 that the Maine Human Rights Act included the right of a transgender student to use the bathroom of choice.

The court praised the school district for exploring Nicole's needs through a Section 504 disability plan. The Maine high court concluded that, "Decisions about how to address students' legitimate gender identity issues are not to be taken lightly."

The court added, "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, denying access to the appropriate bathroom constitutes sexual orientation discrimination."

While bathroom issues are the most prominent conflict, questions also can arise out of rooming arrangements, field trips, proms, and dances, or over whether to insist that a child be in the process of gender reassignment to trigger policies. Still more issues may stem from school portrait dress codes, bullying, and harassment.

Being a good sport

Participation on sports teams is particularly problematic for transgender students. The traditional separation by gender acknowledges that muscle mass, speed, and other elements reflect born boy-girl differences. So fairness comes into play.

In February 2014, the Virginia High School League unanimously adopted a policy allowing transgender students who have undergone sex reassignment surgery or taken hormone treatments to join a sports team that fits their identity. …

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