Legal Issues Associated with LGBTQ Students Lapeer Community Schools Friday, March 17, 2017 Presented by Kevin T. Sutton www.LuskAlbertson.com/Transgender @LuskAlbertson

What the *#@^ ?!?

March Madness Course Offerings: Sociology Psychology Political Science Constitutional Law Contracts Civil Rights Law

How Did We Get Here? First Transgender Groups – 1950s and 1960s Christine Jorgensen / Virginia Prince Transsexuals / Transvestites – 1970s and 1980s Rise in LGBT Organizations – 1990s and 2000s Entertainment Leads the Way – 2010s The Danish Girl: Actor Eddie Redmayne nominated for Oscar for portrayal of transgender woman in 1920’s who underwent one of the first sex reconstruction surgeries.

From the News Desk … No More King and Queen: High School Makes Homecoming Court Gender-Neutral South Dakota Lawmaker Proposes Genital Inspections for Trans High School Athletes 51% of US Adults Say Transgender Individuals Should Be Allowed To Use Bathroom of Gender Identity New Indiana Bill Aims to Fine Transgender People for Using “Wrong” Bathroom Churches Sue Massachusetts Over Transgender Bathroom Law NB Athletic Association policy PASSED 1/15/16 -must have documentation from family/friends and Doctor that student truly identifies with that gender -HIGHER standard for transgender girls: have to have had hormone therapy for 1 year -policy reflects “Midwestern values” of the state “MO District adopts policy for accommodating transgender students, including gender neutral restrooms” -District will designate gender neutral bathroom upon request, all students can use them -students will use locker room of biological sex but other options include online PE, early access to locker rooms, separate enclosed shower and change rooms Fairfax County, VA: student and pres. of Traditional Values Coalition sue District because its amended anti-discrimination policy that includes gender identity/expression and sexual orientation is more stringent than what state law provides so District doesn’t have this authority “SD Lawmaker Proposes Genital Inspections for Trans High School Athletes” WI District cancels plans to read book to elementary students about a transgender student after parents threaten lawsuit “Chris Christine wants to spare transgender kids the ‘Confusion’ of choosing their own bathroom” -Ben Carson & Mike Huckabee have also come out against transgender people using bathroom of their gender identity on the presidential campaign trail NC Pizzeria designates gender neutral bathroom to make everyone feel more comfortable -after attending Charlotte city council meeting about non-discrimination ordinance that protected LGBT community that did not pass New IN Bill Aims to Fine Transgender People for using ‘Wrong’ Bathroom -fine and possible imprisonment for using restroom that does not match gender on birth certificate -the “potty police” -would apply to students in schools A Woman Complained to Planet Fitness About a Transgender Member. This is How They Responded. -”Judgment Free Zone” = cancelled membership of woman who complained and then told other gym members all about it -MIDLAND, MI

Challenges Fear Historical Concepts of Man/Woman Religious Beliefs Politics (!) Societal Dynamics/Structure Social Acceptability Reactive, Not Proactive Laws Fear

Common Themes Topics: Outcomes (Cases/Guidance): Pronoun/name usage Bathroom usage Sports teams/participation Student records Overnight stays Outcomes (Cases/Guidance): Focused on individual rights Individual > Group Law reacting slowly OCR legislating … Not So Fast, My Friend Common Theme topic: Overnight stays

Legislative Sources Federal, State, and Local Laws

Sources of Law - Federal Title IX Prohibits discrimination based on sex in any educational program or activity receiving federal financial assistance Courts have recognized that Title IX’s prohibition on sex discrimination includes protections against discrimination and harassment on basis of failure to conform to sex stereotypes and gender identity FERPA Protects student educational records and personally identifiable information from being publicly disclosed; includes birth name Title VII Does not expressly prohibit discrimination on the basis of gender identity; however, cases indicate protections in place Hate Crimes Act [18 USC 249] Includes “gender identity” and “sexual orientation” Federal Registrar Regulation – All bathrooms in federal buildings available to transgender individuals No federal law explicitly protects transgender students from discrimination

Sources of Law - State 19 states (+ D.C.) presently have laws prohibiting discrimination against transgender individuals California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Utah, Vermont, Washington, Wash D.C. Absent from the list  Michigan 200 cities and counties nationwide that have prohibited gender identity discrimination, including: Atlanta, Buffalo, Cincinnati, Dallas, Kansas City, Milwaukee, New Orleans, New York City, Philadelphia, Phoenix, Pittsburgh, San Antonio, San Francisco Absent from the list  Any Major City in Michigan

Michigan Law/Guidance Elliott Larsen Civil Rights Act Does not include transgender status as a classification protected from discrimination (or sexual orientation) State Board of Education Position Statements Model Student Code of Conduct (2015) Model Anti-Bullying Policy (2016) Statement on Safe and Supportive Learning Environments for LGBTQ Students (2016) WHY? OCR Determinations Dear Colleague Letters Nationwide Court Cases

The Role of OCR USDE/USDOJ Try to Shape Legal Standards … And Then They Don’t

Input From OCR Policy Position Pretty Clear Dear Colleague Letters 2010, 2011, 2014, 2015 (Obama-Era) Arcadia Unified School District Settlement Agreement resolving complaint “All students, including transgender students and students who do not conform to sex stereotypes, are protected from sex-based discrimination under Title IX and Title IV.” Policy Position Pretty Clear Palatine Update: OCR found District in violation of Title IX because it didn’t let a transgender girl use the girls’ locker room Settlement agreement provided a compromise of privacy curtains in the girls’ locker room OCR said the settlement applied District-wide, not just to the transgender student at issue District threatened to rescind the settlement OCR said the settlement only applied to that student so it still stands

Input From OCR (cont) May 13, 2016 DCL (Obama-Era) Implications Definitive, Unequivocal Statement Names, Pronouns, Restrooms, Locker Rooms, Overnight Stays, Athletics, Amendment of Student Records “Consistent with their Gender Identity …” Implications Applies to all Recipients of Federal Funds Palatine Update: OCR found District in violation of Title IX because it didn’t let a transgender girl use the girls’ locker room Settlement agreement provided a compromise of privacy curtains in the girls’ locker room OCR said the settlement applied District-wide, not just to the transgender student at issue District threatened to rescind the settlement OCR said the settlement only applied to that student so it still stands

Legal Challenges to OCR Legal Overreach by OCR? Coalition of States Challenge Based on violations of Administrative Procedures Acts Injunction Issued by District Court in Texas [OCR is] enjoined from initiating, continuing, or concluding any investigation based on [OCR’s] interpretation that the definition of sex includes gender identity in Title IX’s prohibition against discrimination on the basis of sex. It cannot be disputed that the plain meaning of the term sex … when it was inacted ... meant the biological and anatomical differences between male and female student as determined at their birth.

Trump-Era Changes Making America Great Again? DCL Litigation Curious Timing DCL Litigation Reverse Field February 22, 2017 Guidance Roll-Back May 2016 DCL Closing on a Positive Note OCR Resources: www2.ed.gov/about/offices/list/ocr/lgbt.html

Lawsuits, Lawsuits, Lawsuits! Legal Actions Coast to Coast are Filed

Example of Court Jurisdictions

THE Case? Maybe Not … G.G. v. Gloucester County Sch Bd Facts Procedural History District Court [824 F.3d 540 (ED Va 2015)] C of A [2016 US App LEXIS 13052 (4th Cir 2016)] Supreme Court [136 S.Ct. 2442 (2016)] Petition for Certiorari filed 8.29.16; granted 10.28.16 Case was to be heard 3.28.17 Case remanded based on 2.22.17 guidance from OCR/DOJ

State BOE Guidance After Much Debate, The Board Weighs In

State BOE Statement & Guidance on Safe and Supportive Learning Environments for LGBTQ Students Initial Draft Released Feb 2016 Public Comment Extended due to Volume 13,000+ Comments Received Vote Pushed to September Revised Guidance Adopted September 2016 Implication … Not a legal mandate Just guidance, suggestions Topics Covered: Names/pronouns Student records Restrooms Locker rooms PE classes Dress Code Athletics

Policy Statement “[A] school’s Title IX obligation to ensure nondiscrimination on the basis of sex requires schools to provide transgender students equal access to educational programs and activities even in circumstances in which other students, parents, or community members raise objections or concerns. As is consistently recognized in civil rights cases, the desire to accommodate others’ discomfort cannot justify a policy that singles out and disadvantages a particular class of students.”

Resources for Students State BOE  Designate a building-level staff member who is conversant in issues related to sexual orientation, gender identity, and gender expression

Name Changes/Pronouns When requested by the parent/guardian and/or student, school staff should engage in reasonable and good faith efforts to address students by their chosen name and pronouns that correspond to their gender identity, regardless of whether there has been a legal name change. Upon request, the chosen name and gender should be included in the district’s information management systems, in addition to the student’s legal name. District-generated student email addresses should also reflect the student’s chosen name, if first names are identifiable in such addresses. These changes inform all staff, including substitute teachers, of the name and pronoun to use when addressing the student, and help avoid inadvertent disclosures.

Restroom Usage Nationwide Cases/Guidance Michigan State BOE  Maine Supreme Court Colorado Rights Division Seattle Public Schools New York Dept. of Ed Massachusetts Dept. of Ed Michigan State BOE  Students should be allowed to use the restroom in accordance with their gender identity. Alternative and non-stigmatizing options, such as an all-gender or single- user restroom (e.g., staff bathroom or nurse’s office), should be made available to all students who request them. While gender-neutral bathroom facilities are often the solution that works best for all students, including transgender students, districts are reminded that current interpretation of federal civil rights laws protect the right of transgender students to use the bathroom of their gender identity if they so choose.

Student Records When requested, schools should engage in reasonable and good faith efforts to change current unofficial student records (e.g., class and team rosters, yearbooks, school newspapers, and newsletters) with the chosen name and appropriate gender markers to promote consistency among teachers, substitute teachers, school administrators, and other staff. The Michigan School Code requires proof of identity and age for school entry (e.g., birth certificate, passport) but does not address changing names and gender markers in student records. Per communications with the U.S. Department of Education, the gender marker in the pupil’s official record should reflect the gender identity of the student regardless of what appears on the birth certificate. School districts should comply if transgender students ask the district to amend their secondary educational records, including diplomas and transcripts after graduation, to ensure that those requesting records (e.g., college admissions offices or potential employers) will only see the name and gender marker corresponding to the student’s gender identity.

Overnight Stays Not directly addressed by State BOE OCR Dear Colleague Letter Housing and Overnight Accommodations “A school must allow transgender students to access housing consistent with their gender identity and may not require transgender students to stay in single-occupancy accommodations or to disclose personal information when not required of other students” Now gone, so … Overall Trend?

The Parent Trap Student Request / Parents Object What We Hope For Unfortunate Reality Dilemma Outcome Support

MHSAA The Michigan High School Athletic Association (MHSAA) adopted a Transgender Policy at its May 2012 Representative Council Meeting to approve policies and procedures by which the MHSAA executive director will determine the eligibility of transgender students in MHSAA tournaments; policies and procedures are to be provided to schools when requested on a case-by-case basis Transgender Student Eligibility – Motion by Karen Leinaar, supported by Pete Ryan, to approve policies and procedures by which the MHSAA executive director will determine the eligibility of transgender students in MHSAA tournaments. Adopted. The document is to be provided to schools when requested on a case-by-case basis. State BOE  Students should be allowed to participate in interscholastic sports in accordance with their gender identity.

What Do We Do Now? Deciphering the Legal and Political Developments

The Legal Reality

Practical Considerations** ** = Legal Uncertainty; Best Practices based on Info Available Term “transgender” is an adjective; using term as verb (“transgendered”) or noun (“transgenders”) can be offensive Use student’s preferred name and pronouns; instruct other staff members to do the same Make dress-code guidelines gender neutral; transgender students can dress according to their gender identity as long as it complies with the dress code Don’t put any requirements on accepting a student’s own gender identity; their word is enough Allow transgender students to use the restroom (and locker rooms) of the gender of which they identify

Practical Considerations** Allow transgender students to enroll in the PE class of the gender of which they identify On overnight field trips, allow transgender students to room with other students of the gender of which they identify Play on sports teams of their preferred gender Allow students to run for homecoming or prom court of the gender of which they identify Student may be eligible for a 504 Plan due to the anxiety, depression or psychological distress; 504 Plan can include student’s preferred name and pronoun and appropriate restroom use Provide resources to families; gender support plan

Resources … www.LuskAlbertson.com/Transgender Model Policy Transgender and Gender Nonconforming Students (2014) New York Department of Education Guidance (2015) OSHA Best Practices (2015) Mass Department of Education Guidance (2013) State BOE Statement and Guidance on Safe and Supportive Learning Environments for LGBTQ Students (2016) NSBA Transgender Students in Schools (2016) OCR Dear Colleague Letters (2016, 2017) Macy v Holder, 2012 WL 1435995 (2012) EEOC position is that an employer violates Title VII when it refuses to hire, fires, demotes or subjects transgender employee to adverse employment conditions because of transgender status, transition, or failure to comport with gender stereotypes *access to restroom = a condition of employment www.LuskAlbertson.com/Transgender

Questions?

Additional Questions? Kevin T. Sutton Direct: (248) 988-5695 Cell: (734) 377-7400 Email: KSutton@LuskAlbertson.com