In recent years, the legal rights of transgender students have been litigated in courts around the country. While court decisions have provided some guidance for school districts, many questions remain. This article addresses how courts have addressed some of the hot button issues facing school districts and highlights where uncertainty remains.
Bathrooms and Locker Rooms:
Courts have consistently invalidated school board policies that require transgender students to use bathrooms that match their biological sex. In Evancho v. Pine-Richland Sch. Dist., 237 F.Supp.3d 267, 284 (W.D. Pa. 2017), transgender students challenged the district requirement that students use either facilities that correspond to their biological sex or unisex facilities. In February 2017, the court issued a preliminary injunction against the school district. The court found that the requirement likely would cause the transgender students to succeed on a claim that their Equal Protection rights were violated. The case was settled in July 2017 upon the school board’s rescission of the policy and payment of monetary compensation and legal fees to the students, as well as an agreement by the board to update its antidiscrimination policy to include gender identity.
The same rule applies to the use of bathrooms while on field trips. In A.H. by Handlin v. Minersville Area Sch. Dist., 2019 WL 4875331 (M.D. Pa. 2019), A.H., a student who was born a biological boy but diagnosed with gender dysphoria and identified as a girl, challenged Minersville Elementary School prohibiting A.H. from using girls’ restrooms at school and school-sponsored events. A.H. used single-user/unisex restrooms and the district required her to use boys’ restrooms on field trips. The parties disputed the extent to which A.H. was required to use or chose to use unisex bathrooms at school, but it was undisputed that the school policy required her to use boys’ restrooms on field trips. The court granted an injunction to A.H., barring the school from its practices and requiring that she must be permitted to use bathrooms corresponding with her gender identity when on school field trips.
On the other hand, the Third Circuit has upheld a policy allowing transgender students to use bathrooms and locker rooms that match their gender identity. In Doe by and through Doe v. Boyertown Area Sch. Dist., 897 F.3d 518, 521 (3d Cir. 2018), the district policy allowed transgender students to use bathrooms and locker rooms that were consistent with the students’ gender identities. The Policy: 1) required individual transgender students to meet with trained and licensed counselors who often consulted with additional counselors, building principals and school administrators; and 2) once given permission, required the student to use only the facilities aligned with their gender identity and not to use those matching their sex assigned at birth (or also allowing them to use single-user facilities). The District also took measures to ensure that there were individual private restrooms and changing areas available to any student who was uncomfortable sharing facilities or wanted enhanced privacy.
A group of high school students who identified as being the same sex they were determined to have at birth (cisgender) challenged the policy, claiming that it violated their constitutional rights of bodily privacy and was discriminatory under Title IX. The court rejected Plaintiffs’ right to privacy claims. It first found that the right to privacy does not extend to “protecting” cisgender students from sharing restrooms and locker rooms with transgender students. In addition, the court explained that students were not required to disrobe in front of other students, however if they chose to, they would be disrobing in a place commonly designated as a place to do so.
The Court also rejected the Title IX sexual discrimination claims. The court noted that “barring transgender students from restrooms that align with their gender identity would itself pose a potential” Title IX sex discrimination violation. Further, requiring them to use single-user facilities would be a stigmatizing action also amounting to discrimination. Because the policy was gender-neutral, and there was no evidence of transgender students using the restrooms and locker rooms aligned with their gender identity in an inappropriate or invasive manner, the court concluded that plaintiffs were not subjected to a sexually discriminatory hostile environment.
Accordingly, based on these holdings, transgender students are entitled to use the facilities that match their gender identity.
Sports
In addition to permitting transgender students to use bathrooms and locker rooms that correspond with their gender identity, courts have indicated that transgender students can join teams that conform with their gender identity and invalidated laws limiting this right.
In A.M. by E.M. v. Indianapolis Pub. Schools, 2022 WL 2951430 (S.D. Ind. July 26, 2022), the court held that Indiana’s recently enacted law that prohibited an individual from playing on a sports team that does not conform to his or her gender identity “punishes that individual for his or her gender non-conformance,” which violates the clear language of Title IX. The Court also noted that the Indiana Law did not prohibit all transgender athletes from playing with the team of the sex with which they identify. Instead, it only prohibited transgender females from doing so and the court determined that “singling out of transgender females is unequivocally discrimination on the basis of sex, regardless of the policy argument as to why that choice was made.”
Similarly, in B.P.J. v. West Virginia St. Bd. of Educ., 550 F. Supp. 3d 347, 356 (S.D. W. Va. 2021), the court granted a preliminary injunction in favor of a transgender female who wished to join the girls’ cross country and track teams but was prohibited by West Virginia law from doing so. The court noted that “[a]ll other students in West Virginia secondary schools – cisgender girls, cisgender boys, transgender boys, and students falling outside of any of these definitions trying to play on the boys’ teams – are permitted to play on sports teams that best fit their gender identity. Under this law, B.P.J. would be the only girl at her school … that is forbidden from playing on a girls’ team and must join the boys’ team…. [T]his law both stigmatizes and isolates B.P.J.”.
Parental Rights
Occasionally, parents may not be supportive of their child’s transgender identity and object to the school district’s support for such identity. In these circumstances, the courts have not set forth clear guidance as to whether schools can withhold information about a child’s transgender identity from the parents.
Parents have an interest in directing the care of their children, but, for some portions of the day, children are in the compulsory custody of state-operated school systems. During this custodial time, to maintain order and the proper educational atmosphere, schools may impose standards of conduct that differ from those approved of by some parents. Where these standards collide, a court will require the district to demonstrate a compelling interest that outweighs the parental liberty interest in raising and nurturing their child.” Gruenke v. Seip, 225 F.3d 290, 309 (3d Cir.2000).
Generally, school districts cross the line and impermissibly interfere with parental rights when they compel, constrain or coerce a student into a course of action without parental involvement. In Gruenke v. Seip, 225 F.3d 290, 309 (3d Cir.2000), the Third Circuit recognized the parental liberty interest of a mother was violated when her daughter was forced by her high school swim team coach to take a pregnancy test after he became suspicious that she was pregnant. Id. at 296–97. The court stated that “[s]chool-sponsored counseling and psychological testing that pry into private family activities can overstep the boundaries of school authority and impermissibly usurp the fundamental rights of parents to bring up their children….” Id. at 307.
In the context of transgender students, two courts in other jurisdictions have examined whether district policies prohibiting the disclosure of a student’s gender identity to their parents without the student’s consent violated the parents’ right to control the upbringing of their child and reached opposite results. In John and Jane Parents 1 v. Montgomery Cnty. Bd. of Educ., No. 20-3552 (D. Md. Aug. 18, 2022), the court dismissed a suit brought by a group of parents against the school board alleging that the board’s Guidelines violated the parents’ Fourteenth Amendment right to “direct the care, custody, education, and control of their minor children.” The controversial portion of the Guidelines advised that school district personnel avoid disclosing a student’s gender identity to their parents without the student’s consent, particularly if the student has not yet disclosed their gender identity to their parents, or if the student either expects or knows their parents to be unsupportive.
The Court explained that the Guidelines instructed the staff to keep a student’s gender identity confidential until the student consents to the disclosure out of concern for the student’s well-being, and as a part of a more comprehensive gender support plan that anticipates and encourages eventual familial involvement whenever possible. Under these circumstances, the court held that the parents’ rights were not violated because parents do not possess a fundamental right “to be promptly informed of their child’s gender identity, when it differs from that usually associated with their sex assigned at birth, regardless of their child’s wishes or any concerns regarding the detrimental effect the disclosure may have on that child.”
Conversely, in Ricard v. USD 475 Geary County, KS School Board, 5:22-cv-04015 (D. Kan. May 9, 2022), the court stated that, given that parents have a constitutional right to control the upbringing of their children: “It is difficult to envision why a school would even claim—much less how a school could establish—a generalized interest in withholding or concealing from the parents of minor children, information fundamental to a child’s identity, personhood, and mental and emotional well-being such as their preferred name and pronouns.” The court indicated that such information could only be withheld if from parents “there is a particularized and substantiated concern that disclosure to a parent could lead to child abuse, neglect, or some other illegal conduct.”
As demonstrated by these cases, the boundaries of parental rights to control the upbringing of their children in schools are not clearly defined.
Regardless of whether school officials are obligated to inform parents about their child’s gender identity without prompting, some courts have invalidated policies that compelled staff to lie to parents about the gender identity of their child. In Ricard, discussed above, the challenged policy also prohibited employees from revealing to parents that a student has requested use of a preferred name or different set of pronouns at school “unless the student requests the administration or a counselor to do so.” The policy prohibited direct disclosure (for the purpose of informing parents of the requested names/pronouns) and indirect disclosure (revealing preferred names/pronouns as part of a communication about an unrelated matter, like grades or attendance).
The court found that this policy violated a teacher’s free exercise of religion rights because her religion prohibits dishonesty and it is a form of dishonesty to converse with parents of a child using one name and set of pronouns when the child is using and being referred to at school by a different name and pronouns, unbeknownst to the parents.
Student Rights
While parents have rights to control the upbringing of their children, students may also possess rights to keep certain information private. As with parental rights, the strength of student privacy rights remains unclear. In Sterling v. Borough of Minersville, 232 F.3d 190, 194 (3d Cir. 2000), a police officer discovered two male teenagers (not minors) in a parked car at night and threatened to disclose to one of the teenager’s relatives the secret that the teenager was a homosexual. Id. at 192. The threat allegedly resulted in the teenager’s committing suicide. Id. In affirming an order denying summary judgment on qualified immunity grounds, the Third Circuit held that public disclosure by the government of a plaintiff’s sexual orientation can give rise to a constitutional claim for the violation of privacy. Id. at 196.
However, the court then clarified that the zone of privacy, while clearly established in matters of personal intimacy, is not absolute. If there is a government interest in disclosing or uncovering one’s sexuality that is “genuine, legitimate and compelling,” then this legitimate interest can override the protections of the right to privacy.
In Wyatt v. Fletcher, 718 F.3d 496, 499 (5th Cir. 2013), the Fifth Circuit reversed the lower court and held that educators were entitled to qualified immunity because “there is no clearly established law holding that a student in a public secondary school has a privacy right under the Fourteenth Amendment that precludes school officials from discussing with a parent the student’s private matters.” The Wyatt court was critical of the Third Circuit’s Sterling decision and noted that the victim in Sterling was not a minor (“because [plaintiff] was 18, there was no reason for [the officer] to interfere with [plaintiff’s] family’s awareness of his sexual orientation.” Id. at 197–98).
Similarly, in Nguon v. Wolf, 517 F. Supp. 2d 1177 (C.D. Cal. 2007), the court held that there was no violation of right to privacy under First Amendment when a principal disclosed a student’s sexual orientation to mother in carrying out a statutory duty to advise parents of circumstances leading to student’s suspension.
PRACTICAL ADVICE
Legal issues involving transgender students are constantly evolving. With respect to some issues, there is no clear guidance from administrative agencies or the courts; as to other issues, there is conflicting guidance. It is important that school districts have awareness of these potential issues and consult with legal counsel when addressing particular situations, especially whenever there is a present lack of clarity from statutes, regulations or decisional law.
