Sara E. Visingard svisingard@harrisbeach (585) 419-8748

Creating a Safe and Supportive Environment for Transgender and Gender Nonconforming StudentsSeptember 1, 2016 Sara E. Visingard svisingard@harrisbeach.com (585) 419-8748

DASA Prohibitions Generally • No student shall be subjected to harassment or bullying by employees or students on school property or at a school function; nor shall any student be subjected to discrimination based on a person's actual or perceived race, color, weight, national origin, ethnic group, religion, religious practice, disability, sexual orientation, gender, or sex by school employees or students on school property or at a school function. • “School Property” means “[i]n or within any building, structure, athletic playing field, playground, parking lot, or land contained within the real property boundary line of a public elementary or secondary school; or in or on a school bus…” • “School Function” means “school-sponsored extra-curricular event or activity.” ‹#›

In Accordance with DASA … • SeeBoard Policy No. 7416, entitled “Dignity for All Students Act” • All District staff who are aware of harassment, bullying, and/or discrimination, are required to orally report the incident(s) within one (1) school day to the Principal, Superintendent, or his/her designee and report it in writing within two (2) school days after making an oral report.: • Appropriate corrective action must be taken. • Retaliation is prohibited. • Training and awareness is key. • The “Dignity Complaint Form” is available online. ‹#›

Recommendations for Staff: Before an Incident Occurs • Review the District’s policies • Know the Dignity Act Coordinators in your building • Set an example for colleagues and students • Empower students • Practice makes perfect • Ask for assistance when needed ‹#›

Recommendations for Staff: Does *this* trigger DASA? • No bright-line rule • Every circumstance is different • Intervene when students act inappropriately • Gather information about the “facts” • If unsure, err on the side of reporting ‹#›

Creating a Safe and Supportive Environment for All Students

Legal Goings-on at the Federal Level • Federal laws require that we safeguard the rights of transgender and gender nonconforming students (e.g. Title IX). • The Department of Education Office of Civil Rights has taken an active role in investigating alleged violations of Title IX in public schools. • OCR has issued findings and has entered into resolution agreements. • Several cases have now made their way to federal court. ‹#›

U.S. Dep’t of Educ. v. Dorchester Cnty. Sch.Dist. (June 16, 2016) • Dorchester County School District Two in South Carolina entered into a Resolution Agreement with OCR to allow a transgender student to use the bathroom of her choice and will revise its policies, notices, handbooks, etc., to bar discrimination based on gender identity. • The settlement came after OCR issued a Letter of Findings that the District denied the student access to the restrooms designated for girls, and confirmed that it provided her access only to private bathrooms located in the nurse’s station, the assistant principal’s office, and the room formerly used for behavior intervention purposes. • OCR had concluded that the District treated the student differently, on the basis of sex in determining whether she satisfies any requirement or condition for the provision of benefits, or services; by providing her different benefits or benefits in a different manner; and by subjecting her to separate or different rules of behavior, or otherwise limiting her in the enjoyment of rights, privileges or opportunities, in violation of the Title IX regulation. ‹#›

Arcadia Unified School District (California, 2013) • Transgender male consistently and uniformly presented as a boy at school and in all other aspects of his life for several years, as supported by documentation provided to the District by his family. • By the end of fifth grade, the student’s classmates had accepted his transformation. At school, however, the boy was given a separate dressing area (the nurse’s office) for gym class and was assigned to a distant, cross-campus restroom (the nurse’s office), the use of which made him late for class. In addition, during the seventh grade camping trip, the school refused to let the student sleep in a cabin with male friends, even though the friends had requested him as a cabin mate. The boy was forced to stay in a separate cabin with one of his parents. • Student believed that he was denied educational opportunities on the basis of sex, because he is transgendered. Specifically, he said that the school prohibited him from accessing: (1) sex-specific facilities designated for male students at school for use during school and extracurricular activities, and (2) sex-specific student cabins for male students during a school-sponsored overnight academic camp. He filed a complaint with the federal Office for Civil Rights (“OCR”). ‹#›

Arcadia Unified School District (California, 2013) (continued) • Without admitting any unlawful conduct, in order to resolve the Complaint, the District agreed to implement a resolution agreement through which includes individual and District-wide measures. Specifically, for the duration of the Student’s enrollment, the District agreed (among other measures) to continue to: • Provide the Student access to sex-specific facilities designated for male students at school and District-sponsored activities, including overnight events and extracurricular activities on and off campus, consistent with his gender identity; • Treat the Student the same as other male students in all respects in the education programs and activities offered by the District; and • Ensure that any school records containing the Student’s birth name or reflecting the Student’s assigned sex, if any, are treated as confidential, personally identifiable information; are maintained separately from the Student’s records; and are not disclosed to any District employees, students, or others without the express written consent of the Student’s parents or, after the Student turns 18 or is emancipated, the Student. ‹#›

Court Cases – G.G. v. Gloucester County Sch. Bd. • A lower court in the Eastern District of Virginia examined in 2015 whether a 16-year-old male transgender student was discriminated against after the school board required all students to use bathrooms based on their biological sex. • The court dismissed the student’s claims, holding that “the School Board seeks to protect an interest in bodily privacy that the Fourth Circuit has recognized as a constitutional right, while G.G. seeks to overturn a long tradition of segregating bathrooms based on biological differences between the sexes.” • On appeal, a Fourth Circuit panel ruled on April 19th in favor of transgender student access and directed the lower court to revisit the student’s request for interim relief to be able to use the bathroom that corresponds with his gender identity. The court noted that the Title IX regulation is silent as to how a school should determine whether a transgender student is a male or female for the purpose of access to sex-segregated restrooms and deferred to OCR’s guidance. • The District filed a motion for rehearing by the full circuit court, but this motion was ultimately denied on May 31, 2016. (*Note Supreme Court may decide.) ‹#›

Students and Parents for Privacy v. U.S. Dep’t. of Educ. (filed May 4, 2016) • A group of students who attend Palatine Township High School in Illinois, represented by the Alliance Defending Freedom and Thomas More Society, filed suit against the U.S. Department of Education and the district alleging the DOE is illegally forcing local authorities to let children use facilities that correspond to their gender identity. • The suit alleges that the federal government has violated students’ fundamental right to privacy and parents’ constitutional right to instill moral standards and values in their children. • It seeks to block implementation of a settlement agreement between DOE and the district that allowed a transgender student who identifies as a girl to use a private changing area in the girls’ locker room. Arguments will be heard August 3, 2016. • The complaint alleges violations of (1) the Administrative Procedure Act; (2) the right to privacy; (3) the substantive due process right of parents to direct their children’s education; (4) Title IX; (5) the Religious Freedom Reformation Act; and (6) the First Amendment’s Free Exercise of Religion Clause. ‹#›

Board of Educ. of Highland Local Sch.Dist. v. U.S. Dep’t. Educ. (filed June 10, 2016) • Highland Local School District in Ohio filed suit against the federal government in federal court after the U.S. Department of Education threatened to begin an enforcement action unless the school district allowed a transgender elementary school student to use the restroom that reflects the student’s gender identity. • The suit, which was filed by the Alliance Defending Freedom on behalf of the District, is seeking a court order prohibiting DOE officials from taking action. • Alliance Defending Freedom’s senior counsel said in a press release, “Schools have a duty to protect the dignity, privacy, and safety of all students. This is precisely what Highland Local School District has done.” “Despite that, the Department of Education is attempting to strong-arm Highland into complying with a lawless demand to open its single-sex overnight accommodations, locker rooms, showers, and restrooms to students of the opposite sex. The DOE is trying to redefine a federal law that only Congress can change.” • The legal complaint alleges several violations of federal law. ‹#›

New York State Guidance • State laws and guidance also require districts to safeguard the rights of transgender and gender nonconforming students (e.g. New York State Dignity for All Students Act). • Note State Education Department (“SED”) publication: “Guidance to School Districts for creating a Safe and Supportive School Environment For Transgender and Gender Nonconforming Students” (July 2015). ‹#›

Respecting Students’ Choices and Sincerely Held Beliefs • The guidance recommends accepting a student’s assertion of gender identity, respecting the student and treating the student according to the student’s self-identification. • Per SED, no documentation need be presented where there is no reason to believe that a student is expressing “anything other than a sincerely held belief” regarding gender identity. • Names and pronouns. If a transgender student chooses to use a first name other than his/her given name in order to reflect his/her gender identity, the school should implement a plan for use of the chosen name and corresponding pronoun. ‹#›

Privacy, Confidentiality, and Student Records • The guidance recommends taking steps to keep a student’s birth name confidential when a new transgender or gender nonconforming student enrolls or when an already enrolled student begins using a chosen name rather than a birth name. • The guidance recognizes that there may be practical issues with respect to some student records, particularly standardized test results that are tracked. • Additionally, if a transgendered student is participating in a school sponsored out-of-country trip, the student will have to follow federal requirements as to name and gender identity with respect to the student’s passport. • The guidance recommends that school nurses use the student’s birth name only if required to verify that the student receives proper care, to coordinate care with other providers, and/or to file insurance claims. ‹#›

Gender-based activities, rules, polices, and practices • Gender-based rules, policies and practices should be reviewed to “eliminate any that do not serve a clear pedagogical purpose.” • According to the guidance, where classes, such as physical education classes, are segregated by sex, students should be allowed to participate in the class consistent with their gender identity. ‹#›

Restrooms and Changing Rooms • Student restrooms and changing rooms. SED’s stance is that prohibiting a student from utilizing the restroom that matches his or her gender identity constitutes sex discrimination in violation of Title IX. SED believes that a single unisex bathroom or private changing space may be made available upon the request of a transgender or gender nonconforming student, but may not be presented as the only option. • School districts are expected to permit transgender and gender nonconforming students to utilize the restroom matching their gender identity and to find ways to create private areas in formerly communal changing areas. ‹#›

Homer Central School District’s Stance • PRIVACY: The Homer Central School District respects every student’s right to privacy as well as their right to access and use the District’s facilities in a manner consistent with their gender identity. While the District will make arrangements for students to use the bathrooms and changing facilities of the gender with which they identify, the District also provides private spaces in the form of gender neutral facilities in single stall bathrooms for changing for any student desiring privacy or for any other permissible reason. http://www.homercentral.org/districtpage.cfm?pageid=941 ‹#›

The bottom line… • When a transgender or gender nonconforming student transitions from his or her assigned sex at birth to his or her gender identity, or when a new transgender or gender nonconforming student enrolls, the school/district must work closely with the student, and, as appropriate, the student’s parents/guardians, to plan any steps necessary to foster a safe and secure environment for the student. • This must be handled on a case-by-case basis, as the needs of each student and school community will vary. • Consider developing transgender/gender non-conforming procedures that will be helpful to you in working through these issues with your team. • When harassment and/or bullying of transgender and/or gender non-conforming students is suspected or reported, it must be addressed in accordance with DASA and Title IX. ‹#›

Hypothetical - High School Student Alex • Alex is a sophomore in high school. • He self-identifies as female, but his parents are opposed to a transition. • Alex appears withdrawn at school. Some students have started to pick on him for his mannerisms and behavior. • He confided in the school social worker that the following September, he plans to return to school as Alexandra. • What should the social worker do? • What should the school do? • What should the District do? ‹#›

Thank you!

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Sara E. Visingard svisingard@harrisbeach (585) 419-8748